Order on Board

Per Bibhu Datta Guru, Judge

09.12.2024

1. This appeal under Section 96 of the Civil Procedure Code, 1908 challenging the judgment and decree dated 20.02.2024 passed by 8th Additional District Judge, Durg (C.G.) in Civil Suit No. 50-A/2018 (Smt. Punabai Vs. Venkateshwar Prasad Chandrakar and Others).

2. The first appeal has been filed on 26.04.2024, which was registered as F.A. No. 97/2024. When the matter listed on 20.06.2024, this Court has observed that since the application has been moved for exemption from Court fee and it is stated that already the appellant was allowed to sue as a pauper. To verify the facts, record of the learned trial Court was summoned.

3. After filing of the appeal, the appellants also moved an application under Order 33 of CPC with a prayer that the appellant be permitted to sue as an indigent person, consequently exempting to afÏx court fee on the valuation of this appeal.

4. It is not in dispute that the appeal has been filed by the appellant without payment of any court fee as required under the law and the appeal has been registered as a regular first appeal bearing no. 97/2024. Subsequent to filing of the appeal an application I.A. No. 02/2024 filed by the appellant stating that the suit was instituted by the mother of the appellant Smt. Punabai and after due verification she was permitted to contest the suit as an indigent person. He further submits that since except for the suit land there is no other property belonging to the appellant and his family is also below the poverty line and is thus being issued the priority household ration card under Chhattisgarh Food Safety Act, 2012. He further submitted in application that the appellant and his family is living below the poverty line and they do not have sufÏcient income or means to arrange for payment of requisite Court fee in filing the instant appeal. He lastly submit that the plaintiff was also allowed to sue as an indigent person and hence he may be permitted to pursue the present appeal as an indigent person.

5. The question arises herein in the first appeal that whether the first appeal can be permitted to be continued without afÏxing proper court fee and whether in the first appeal itself the appellant can be permitted to sue as an indigent person.

6. For proper examination of this aforesaid question the provision of Order 44 Rule 1 and Order 33 of Rule 1 of CPC are necessary. The same are quoted below :

“Order 44 – Appeals by Indigent persons.--

1. Who may appeal as an indigent person — (1)Any person entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as an indigent person, subject, in all matters, including the presentation of such application, to the provisions relating to suits by indigent persons , in so far as those provisions are applicable.

“Order 33 – Suits by indigent persons.--

1. Suits may be instituted by indigent person -Subject to the following provisions, any suit may be instituted by an indigent person.

Explanation I.—A person is an indigent person—

(a) if he is not possessed of sufÏcient means (other than property exempt from attachment in execution of a decree and the subject-matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit, or (b) where no such fee is prescribed, if he is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree, and the subject-matter of the suit.

Explanation II.-Any property which is acquired by a person after the presentation of his application for permission to sue as an indigent person, and before the decision of the application, shall be taken into account in considering the question whether or not the applicant is an indigent person.

Explanation III.-Where the plaintiff sues in a representative capacity, the question whether he is an indigent pe