Code of Civil Procedure, 1908:
O. XXXIII, r.11 r/w O.XLIV, r.3(2) – Suit u/O. XXXIII r.1 seeking permission to institute suit as an indigent person – Permission refused – Thereafter suit dismissed – Plaintiff filed appeal before High Court u/O.XLIV, r.1 again seeking permission to file the appeal as an indigent person – High Court declined the permission on the ground that he was not allowed to institute the suit u/O. XXXIII, r.1 as an indigent person – On appeal, held: Dismissal of application made u/O. XXXIII, r.1 by the trial court in earlier round of litigation is not a bar against the plaintiff to file an application/appeal u/O.XLIV, r.1 – Rules 3(1) and 3(2) of O.XLIV contemplate holding of inquiry again into the question at the appellate stage as to the status of the appellant as indigent person since the date of the decree, which has been appealed from – High Court did not hold such inquiry – Case is remanded to appellate court for holding an inquiry as contemplated u/r.3(2) of O.XLIV.
Allowing the appeal, the Court
HELD: 1. In view of the scheme of Orders XXXIII and XLIV CPC and the facts of the present case, the case of the appellant (plaintiff) falls in Order XXXIII Rule 11 read with Order XLIV Rule 3(2) CPC. [Para 28][80-F]
2. Though the appellant (plaintiff) was not allowed by the Trial Court/High Court in the earlier round of litigation to institute a suit as an indigent person under Order XXXIII Rule 1 of CPC, yet he was entitled to file an application/appeal under Order XLIV Rule 1 of CPC and seek permission from the Appellate Court to allow him to file an appeal as an indigent person. [Para 29][80-G]
3. Dismissal of application made under Order XXXIII Rule 1 of CPC by the Trial Court in the earlier round of litigation is not a bar against the plaintiff to file an application/appeal under Order XLIV Rule 1 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 XLIV, 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][80-H; 81-A-B]
4. Once the plaintiff files an appeal under Order XLIV, his case is governed by the provisions of Order XLIV. 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. This is subject to applicant filing an affidavit as required under Order XLIV 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 XLIV Rule 3(1). [Paras 31, 32][81-C-D]
5. Clause (2) of Order XLIV Rule 3 of CPC, 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][81E]
6. The High Court did not hold any inquiry as contemplated under Order XLIV Rule 3(2) of the Code and dismissed the appellant’s application made under Order XLIV Rule 1 mainly on the ground that since the appellant was declined permission to institute the suit as an indigent person by the Trial Court in the earlier round and such rejection having been upheld by the High Court in appeal, he cannot be permitted to file an application/appeal under Order XLIV Rule 1 as an indigent person in appeal. This reasoning of the High Court is not in conformity with the Order XXXIII read with Order XLIV and hence cannot be upheld. [Para 34][81-F-H]
7. The case is remanded to the Appellate Court for holding an inquiry as contemplated under Order XLIV Rule 3 (2) of CPC or by the Trial Court, if directed by the Appellate Court to the concerned Trial Court to do so and depending upon the case made out by the applicant/appellant in the inquiry, the Appellate Court will pass appropriate orders accordingly. [Para 35][82-AB]
8. Since the appellant (plaintiff) was not allowed to file suit as an indigent person by the trial court and the said order became final, he was required to pay the ad valorem court fees on the plaint to enable the trial court to decide the suit on merits. The Court will, therefore, verify as to whether the plaintiff paid the said ad valorem court fee in the trial court or not. If it is found that he has not yet paid the said court fees, then the same be recovered from the appellant (plaintiff) in accordance with the procedure provided under Order XXXIII CPC. [Para 38] [ 8 2 D-E]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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