Bench:
- Abhay Manohar Sapre
- Indu Malhotra
Issue:
Whether the High Court was justified in dismissing the plaintiff’s
appeal and rejecting the prayer made by the plaintiff to allow him to file an
appeal under Order 44 Rule 1 of the CPC as an ‘indigent person’.
Facts:
• The appellant filed
a civil suit against respondents in the Court of 2st Additional SubJudge,
Tiruvnanthapuram for recovery of Rs. 74,66,107/- the suit was filed under Order
33, Rule 1 of the CPC, 1908. The appellant alleged that he was unable to pay ad
valorem court fees of Rs. 3,96,610/- and therefore he should granted the
permission to file the suit as an indigent person.
• The respondents
contested the claim by filing a written statement and denied his prayer to be
declared as an indigent person. According to the respondent the appellant was in
the position to pay the court fees as he had sufficient means to pay and
therefore he should not be entitled to claim the status of indigent person under
Order 33 of the Code.
• The Trial Court
rejected the prayer made by the appellant on the ground that he failed to make
out a case that he is an ‘indigent person’. The aggrieved plaintiff (appellant
herein) filed appeal against the order of the Trial Court in the High Court. The
HC dismissed the order and upheld the order of the Trial Court and granted the
plaintiff one month time to pay the requisite ad valorem court fees on the
plaint.
• The plaintiff then
converted his suit in the Original Suit and filed another Civil Suit seeking
declaration and injunction against the defendants in relation to the subject
matter of the first suit. Both the suits were clubbed together for trial. Trial
court dismissed the suits. The plaintiff filed an application accompanied by an
memorandum of appeal before the Kerala HC under Order 44 Rule 1 of the Code
without payment of court fees on the memorandum of appeal.
• By impugned order,
the HC rejected the application and held that in the light of earlier rejection
(prayer to file suit as an indigent person) by the Trial Court and the same
upheld by the HC in the appeal, the plaintiff is not entitled to file an
application/appeal under Order 44 Rule 1 of CPC against the decree of the Trial
Court. Against this order of the HC, the plaintiff filed the appeal by way of
special leave in the Supreme Court.
• On hearing both the
parties of the suit the SC allowed the appeal and set aside the impugned order;
remanded the case to the HC for deciding the appeal afresh and gave directions
as well.
• The SC held that
the plaintiff was entitled to file a suit as an indigent person provided he
prove that he did not have sufficient means to pay the requisite court fees.
Whether the plaintiff possesses sufficient means is to be decided by conducting
inquiry as prescribed under Rules 4 -7 of Order 33 of CPC by Trial Court. If the
person concerned acquires property after presentation of application to sue as
an indigent person and before the judgement, the acquired property is to be
taken into consideration for the decision.
• The Court also
explained the relation between Order 33 and 44 and their concerned Rules. After
examining the scheme of Order 33 and 44 of the Code and the facts of the case
the case of plaintiff falls under Order 33 Rule 11read with Order 44 Rule 3(2)
of the CPC, said the Court.
Judgment:
• In SC's opinion
the plaintiff was entitled to file an application/appeal under Order 44 Rule 1
of the Code and seek permission from the Appellate Court to allow him to file an
appeal as an indigent person. The dismissal of the application made under Order
33 Rule 1 by Trial Court is not a bar against the plaintiff to file an
application/appeal under Order44 Rule 1before the Appellate Court.
• Once the appeal is
filed under Order 44 Rule 1, the case should b governed under the same
provisions. The SC did not concur with the view of the High Court and hence
cannot be upheld.
• If the appellant is
able to prove in the inquiry with the aid of evidence that he is an indigent
person since the date of decree appealed from and is therefore unable to pay the
ad volorem court fees on memorandum of appeal, his application will be allowed
else dismissed. The Appellate Court would decide the matter in six months and
then proceed to decide the appeal in accordance with law. The court would first
verify if the plaintiff has paid the said ad volorem court fee in the trial
court; if not the same would be recovered from the appellant in accordance with
procedure provided under Order 33 of the Code.
