Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.117 OF 2019
[Arising out of SLP (C) No. 19516 of 2014]
Sushil Thomas Abraham ... Appellant(s)
Versus
M/s Skyline Build. Thr.
Its Partner & Ors. … Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. Leave granted.
2. This appeal is directed against the final
judgment and order dated 10.03.2014 passed by the
High Court of Kerala at Ernakulam in CMC
No.78/2011 in RFA No…./2011 whereby the Division
Signature Not Verified
Digitally signed by
ANITA MALHOTRA
Date: 2019.01.07
17:40:03 IST
Reason:
1
Bench of the High Court dismissed the CMC petition
filed by the appellant herein.
3. The facts of the case lie in a narrow compass as
would be clear from their narration infra so also the
controversy which is involved in this appeal is a short
one.
4. The appellant is the plaintiff and the
respondents are the defendants in the civil suit out of
which this appeal arises.
5. The appellant filed a civil suit against the
st
respondents in the Court of 1 Additional SubJudge,
Thiruvananthapuram being OP (indigent) No. 38/96
for recovery of Rs.74,66,107/. This suit was filed
under Order 33 Rule 1 of the Code of Civil Procedure,
1908 (hereinafter referred to as “the Code”). The
appellant alleged that he is unable to pay ad valorem
court fees of Rs.3,96,610/ which was payable by
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him on the claim made in the suit and therefore he
be granted permission to institute the suit as an
indigent person.
6. The respondents (defendants) contested the
claim by filing written statement and denied the
appellant’s claim including his prayer to declare him
as an "indigent person".
7. According to the respondents, the appellant
was in a position to pay the ad valorem court fees of
Rs.3,96,610/ on the plaint because he had sufficient
means to pay the court fees The
ad valorem .
respondents contended that the appellant was,
therefore, not entitled to claim the status of an
"indigent person" within the meaning of Order 33
Rule 1 Explanation I (a) & (b) of the Code for filing a
suit under Order 33 of the Code.
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8. The Trial Court by order dated 19.08.1998
rejected the prayer made by the appellant (plaintiff)
for filing a suit as an "indigent person" under Order
33 Rule 1 of the Code. In other words, the Trial Court
held that the appellant failed to make out a case that
he is an "indigent person" and, therefore, he cannot
be allowed to file a suit as an “indigent person” under
Order 33 Rule 1 of the Code.
9. The plaintiff (appellant herein) felt aggrieved and
filed appeal against the aforementioned order of the
Trial Court in the High Court being CMA No.248 of
1998. By order dated 22.02.2000, the High Court
dismissed the appeal and upheld the order of the
Trial Court. The High Court granted the plaintiff one
month time to pay the requisite ad valorem court fees
on the plaint.
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10. The plaintiff then converted his suit in the
Original Suit (OS No.227/2000). He also filed
another Civil Suit (OS No.921/95) seeking therein the
declaration and injunction against the defendants in
relation to the subject matter of the first suit. Both
the suits were clubbed together for trial. By judgment
and decree dated 12.04.2011, the Trial Court
dismissed the suits.
11. The plaintiff (appellant) felt aggrieved and filed
an application accompanied by the memorandum of
appeal before the High Court of Kerala under Order
44 Rule 1 of the Code. The appellant alleged in the
application that his financial condition is further
deteriorated from what it was earlier when he had
filed a civil suit and, therefore, he is unable to pay
the ad valorem court fees on the memorandum of
appeal.
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12. The plaintiff (appellant), therefore, prayed that
he be allowed to file the first appeal against the
decree of the trial court as an "indigent person"
under Order 44 Rule 1 of the Code without payment
of ad valorem court fees payable on the
memorandum of appeal.
13. By impugned order, the High Court rejected the
application. The High Court in substance held that in
the light of the earlier rejection of the appellant’s
(plaintiff’s) prayer to file a suit as an “indigent
person” under Order 33 Rule 1 of the Code by the
Trial Court and the same having been upheld by the
High Court in the appeal, the plaintiff is not entitled
to file an application/appeal under Order 44 Rule 1
of the Code against the decree of the trial court.
14. In other words, it was held that the plaintiff
(appellant) has to file a regular first appeal under
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Section 96 of the Code against the decree of the trial
court on payment of ad valorem court fees on the
memorandum of appeal payable in accordance with
the provisions of the Court Fees Act.
15. It is against this order of the High Court, the
plaintiff felt aggrieved and filed the present appeal by
way of special leave in this Court.
16. So the short question, which arises for
consideration in this appeal, is 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
Code as an “indigent person”.
17. Heard Mr. C.N. Sreekumar, learned counsel for
the appellant and Mr. Anil Kaushik, learned counsel
for the respondents.
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18. Having heard the learned counsel for the parties
and on perusal of the record of the case, we are
inclined to allow the appeal, set aside the impugned
order and remand the case to the High Court for
deciding the appeal afresh as directed hereinbelow.
19. On perusal of Order 33 of the Code, we find
that the plaintiff is entitled to file a suit as an
“indigent person” under Order 33 of the Code
provided he is able to prove that he is not possessed
of sufficient means to pay the requisite court fees
prescribed by law for the plaint in the suit filed by
him.
20. 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
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by holding an inquiry as prescribed under Rules 4 to
7 of Order 33 of the Code by the trial court.
21. While examining this question, the Court
cannot take into consideration the two properties.
Firstthe property, which is exempted from the
attachment in execution of a decree and the 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.
22. Similarly, 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
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for deciding the question as to whether he is an
indigent person or not.
23. 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.
Order 33 Rule 11 as amended by the State of Kerala
inter alia provides that when the plaintiff is
dispaupered, the Court may order the plaintiff to pay
the requisite court fees within a time fixed by the
Court.
24. Order 44 of the 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.
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25. Order 44 Rule 3 (1) of the 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.
26. 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
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indigent person or not shall be held by the Appellate
Court or Officer of the Court.
27. Order 44 Rule 3(2) of the 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.
28. Having examined the scheme of Orders 33 and
44 of the Code and the facts of this case, we find that
the case of the appellant (plaintiff) falls in Order 33
Rule 11 read with Order 44 Rule 3(2) of the Code.
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29. 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 33 Rule 1 of the Code, yet in our
considered opinion, he 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.
30. In our view, 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
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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.
31. 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
32. 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
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appealed from is mandatory at the appellate stage as
contemplated under Order 44 Rule 3(1).
33. 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.
34. We cannot, therefore, concur with the view
taken by the High Court because the High Court did
not hold any inquiry as contemplated under Order 44
Rule 3(2) of the Code and dismissed the appellant's
application made under Order 44 Rule 1 of the Code
mainly on the ground that since the appellant was
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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 44 Rule 1 of the
Code as an indigent person in appeal. In our view,
this reasoning of the High Court is not in conformity
with the Order 33 read with Order 44 and hence
cannot be upheld in the light of our discussion made
above.
35. In view of the foregoing discussion, the appeal
succeeds and is accordingly allowed. The impugned
order is set aside. The case is remanded to the
Appellate Court for holding an inquiry as
contemplated under Order 44 Rule 3 (2) of the Code
or by the Trial Court, if directed by the Appellate
Court to the concerned Trial Court to do so and
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depending upon the case made out by the
applicant/appellant in the inquiry, the Appellate
Court will pass appropriate orders accordingly.
36. In other words, if the appellant is able to prove
in the inquiry with the aid of evidence that he is or
has become an indigent person since the date of
decree appealed from and is therefore unable to pay
the ad valorem court fees on memorandum of appeal,
his application will be allowed else dismissed.
37. Let the Appellate Court decide the aforesaid
question preferably within six months and then
proceed to decide the appeal accordingly in
accordance with law.
38. Before parting, we may observe that 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
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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 33 of the Code.
………………………………..J.
(ABHAY MANOHAR SAPRE)
..………………………………J.
(INDU MALHOTRA)
New Delhi,
January 07, 2019
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