SC: Dismissal of plea to file a suit as an indigent doesn’t bar a plea to appeal as an indigent.

The Hon’ble Supreme Court, on 7thJanuary 2019, in the matter of Sushil Thomas Abraham v. M/s Skyline Build. Thr. Its Partner & Ors.pronounced that  the dismissal of application made under Order 33 Rule 1 of the Code by the Trial Court in the earlier round of litigation is not a bar against the plaintiff to file an application/appeal under Order 44 Rule 1 of the Code before the Appellate Court. The grant and rejection of such prayer by the Trial Court is confined only up to the disposal of the suit.

The Hon’ble Supreme Court observed that:

The question as to whether the plaintiff is possessed of sufficient means to pay the requisite court fees for the plaint in the suit as per the provisions of Court Fees Act is required to be decided by holding an inquiry as prescribed under Rules 4 to 7 of Order 33 of the Civil Procedure Code by the trial court. (Para 20)

While examining this question, the Court cannot take into consideration the two properties.:

  • First­ the property, which is exempted from the attachment in execution of a decree and
  • Second­ which is subject matter of the suit.

In other words, the aforementioned two properties cannot be regarded as “possessed” by the person concerned for determining his financial capacity to pay the requisite court fees on his claim in the suit. (Para 21)

If the person concerned acquires any property after presentation of the application for grant of permission to sue as indigent person but before the decision is given on his application, such acquired property has to be taken into consideration for deciding the question as to whether he is an indigent person or not. (Para 22)

Order 33 Rule 7(3) empowers the court to either allow or refuse to allow the applicant to sue as an indigent person. Rule 9 empowers the court to withdraw the permission granted under Rule 7(3) at the stance of defendant or State counsel if any of the grounds set out in clauses (a) to (c) is made out. (Para 23)

Order 44 of the Civil Procedure Code applies to appeals. By virtue of Order 44 Rule 1 of the Code, the provisions of Order 33 are made applicable to such appeals.  (Para 24)

Order 44 Rule 3 (1) of the Civil Procedure Code prescribes the procedure in relation to the inquiry which is required to be held to decide the question as to whether the applicant, who has filed the application/appeal under Order 44, can be declared as an indigent person or not. The Rule says that where the applicant is already allowed by the Trial Court to sue as an indigent person then in such circumstances, no further inquiry in respect of the question as to whether he is an indigent person or not is necessary provided such person files an affidavit stating therein that he has not ceased to be an indigent person since the date of decree appealed from. (Para 25)

However, if the government lawyer disputes the statement of the applicant made in the affidavit, then the inquiry into the question as to whether he is an indigent person or not shall be held by the Appellate Court or Officer of the Court. (Para 26)

Order 44 Rule 3(2) of the Civil Procedure Code provides that where the applicant referred to in Order 33 Rule 11 is alleged to have become indigent person since the date of the decree appealed from then the Appellate Court shall hold an inquiry into the question as to whether the applicant has become an indigent person or not since the date of decree appealed from. The Appellate Court in its discretion can also direct the Trial Court which passed the decree appealed from to hold an inquiry on such question. (Para 27)

The dismissal of application made under Order 33 Rule 1 of the Code by the Trial Court in the earlier round of litigation is not a bar against the plaintiff to file an application/appeal under Order 44 Rule 1 of the Code before the Appellate Court. The grant and rejection of such prayer by the Trial Court is confined only up to the disposal of the suit. This is clear from the reading of Rule 3(1) and 3(2) of Order 44, which contemplate holding of inquiry again into the question at the appellate stage as to whether the applicant is an indigent person or not since the date from the decree appealed from. (Para 30)

Once the plaintiff files an appeal under Order 44 of the Code, his case is governed by the provisions of Order 44. The applicant to whom the permission was granted or declined by the trial court is entitled to apply before the appellate court to allow him to continue with the status or grant the status so as to enable him to prosecute the appeal as an indigent person. (Para 31)

This is subject to applicant filing an affidavit as required under Order 44 Rule 3(1) where the status is granted to him by the trial court. If the averments in his affidavit are controverted by the State, an inquiry into the status of the applicant as to whether he is an indigent person since the date of decree appealed from is mandatory at the appellate stage as contemplated under Order 44 Rule 3(1). (Para 32)

So far as Clause (2) of Order 44 Rule 3 of the Code is concerned, it deals with the cases where the applicant was declined the status of an indigent person by the trial court in the suit. In such case, the applicant is entitled to say that he is or has become an indigent person since the date of decree appealed from and, therefore, entitled to prosecute the appeal as an indigent person. In such case also, an inquiry is required to be held to decide his status. (Para 33)

Copy of judgement: Judgement 07-Jan-2019

-Tushar Kaushik

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