Defendants may file to proceed as indigent post-judgment despite prior status; dismissals without proper inquiry constitute jurisdictional error.

IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE DEEPAK KHOT

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ON THE 4 OF SEPTEMBER, 2025 MISC. PETITION No. 3593 of 2025 SMT. RIZWANA BEGUM Versus MAHENDRA SAHU AND OTHERS Appearance:

Shri Saket Agrawal - Advocate for the petitioner.

Shri Dinesh Prasad Patel - Government Advocate and Dr. Preeti Pathak - Panel Lawyer for the respondent/State.

ORDER The present petition has been filed by the petitioner challenging the orders dated 19.06.2025 (Annexure P/1) and 09.04.2025 (Annexure P/5), whereby the First Appellate Court has rejected the MJC No.2/2025 under Order 44 Rule 2 of the CPC and also rejected an application filed under Order 44 Rule 1 of the CPC.

2. It has been contended by learned counsel for the petitioner that the learned Court below without considering the provision of law has dismissed the MJC. It has further been submitted that the learned Court below has not read the provision of law at all and dismissed the MJC. It has been submitted that under Order 42 Rule 1, an application for prosecuting the appeal as an indigent person being aggrieved by the judgment and decree dated 16.12.2024 passed in Civil Suit No.107A/2023 has been filed. The petitioner Signature Not Verified being defendant had challenged the said judgment and decree in appeal, therefore, he had no occasion to submit an application before the Civil Court to prosecute the suit as an indigent person being defendant. When the decree was passed against the defendant then only the defendant had an occasion to file an appeal but as the defendant was not financially sound or capable to submit the court fees then only an application under Order 42 Rule 1 of the CPC has been filed to prosecute the said appeal as an indigent person.

3. Learned Court below on the pretext that the petitioner/defendant did not prosecute the suit as an indigent person dismissed the application, and therefore, it is prayed for quashment of the orders dated 19.06.2025 (Annexure P/1) and 09.04.2025 (Annexure P/5).

4. Heard learned counsel for the petitioners and perused the record.

5. Order 44 Rule 1 of the CPC provides for an appeal by an indigent person. According to said provision, any person entitled to prefer an appeal who is unable to pay the fee required for the memorandum of the appeal may present an application accompanied by a memorandum of appeal. The Court may after considering the application may allow such person to prosecute appeal as an indigent person after ascertaining whether such person is an indigent person or not.

6. Sub Rule 2 of Rule 3 of Order 44 of the CPC provides that if the person alleged to have become an indigent person since the date of the decree appealed from, the inquiry into the question whether or not he is an indigent person shall be made by the Appellate Court or by the officer so appointed.

Signature Not Verified

7. Order 44 Rule 3 of the CPC provides that if the person has been allowed to prosecute the suit or appeal as an indigent person in the court from whose decree the appeal is preferred, no further inquiry in respect of question whether or not he is an indigent person shall be necessary if the applicant has made an affidavit stating that he has not ceased to be an indigent person since the date of decree appealed from. Meaning thereby, if the person who had prosecuted the suit or appeal in the Lower Court as an indigent person may file an application to prosecute the further appeal with an affidavit that he has not ceased to be an indigent person.

8. But here in this case, the petitioner was defendant, therefore, he had no occasion to file such an application to prosecute the suit as an indigent person. Therefore, the approach of the learned Court below is absolutely unreasonable and against the provision of law, as the defendant who had preferred an appeal had the very first time got