Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5493 OF 2011
(Arising out of S.L.P. (C) No. 9544 of 2009)
Mathai M. Paikeday ………….. Appellant
versus
C.K. Antony ………….. Respondent
With
CIVIL APPEAL NO.5494 OF 2011
(Arising out of S.L.P. (C) No. 22472 of 2009)
O R D E R
H.L. Dattu, J.
Delay condoned.
1) Leave granted.
2) These appeals, by special leave, are directed against the common
final order passed by the High Court of Kerala at Ernakulam in
C.M.C.P. Nos. 53 and 60 of 2004 dated 11.08.2008, whereby the
High Court has allowed the petitions and has permitted the
respondent to prosecute the appeals as an indigent person.
3) The brief factual matrix relating to these appeals :- The appellant
had filed two suits for recovery of money against the respondent,
who is a retired Deputy Conservator of Forest drawing a pension
of ` 10,500/-. These suits were decreed in favour of the appellant.
Being aggrieved, the respondent had preferred Regular First
Appeals before the High Court of Kerala along with petitions to
prosecute the said appeals as an indigent person under Order 44
Rule 1 of the Code of Civil Procedure, 1908. The High Court of
Kerala, without holding any inquiry as contemplated under
Order 33 Rule 1A of the Code of Civil Procedure, permitted the
respondent to institute the said appeals as an indigent person,
against which a special leave petition was preferred before this
Court. This Court remanded the matter to the High Court for
passing fresh orders after conducting an inquiry in accordance
with Order 33 Rule 1A of the Code of Civil Procedure.
4) Subsequently, the High Court after conducting the inquiry into
the means and financial capacity of the respondent, has
permitted the respondent to prosecute Regular First Appeals as
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an indigent person vide its order dated 11.08.2008. Aggrieved by
the same, the appellant is before us in these appeals.
5) The issue involved in the present appeals for our consideration
is: Whether the respondent is an indigent person as not
possessed of sufficient means to pay the court fees and,
consequently, entitled to avail the benefits under Order 44 of the
Code of Civil Procedure.
6) Shri. Jawahar Lal Gupta, learned senior counsel, appears for the
appellant and the respondent is represented by Shri.
Subramonium Prasad, learned counsel.
7) The learned senior counsel Shri. Jawahar Lal Gupta submits that
the respondent has admitted during the inquiry before the High
Court that he is a retired Government employee and receives
` 10,500/- by way of pension and also receives money from his
son who is employed in a foreign country. The learned senior
counsel further submits that the respondent had failed to produce
passbooks of his bank account in order to deny the fact of
receiving money from his son. In other words, the failure of the
respondent to produce bank accounts and passbooks amounts to
suppression of the fact of receiving substantial amount of money
from his son. The learned senior counsel further argues that the
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respondent is having sufficient means to pay court fees and is
not entitled to prosecute the Regular First Appeals before the
High Court as an indigent person in terms of Order 44 Rule 1 of
the Code of Civil Procedure.
8) These arguments of the learned senior counsel for the appellants
were refuted by Shri. Subramanion Prasad, the learned counsel
for the respondent, who supported the impugned final order of
the High Court.
9) Order 33 of the Code of Civil Procedure deals with suits by
indigent persons whereas Order 44 thereof deals with appeals by
indigent persons.
10) Order 33 Rule 1 of the Code of Civil Procedure provides for
instituting of suits by indigent person, stating:
“ 1. Suits may be instituted by indigent person—
Subject to the following provisions, any suit may be
instituted by an indigent person.
Explanation I.—A person is an indigent person,—
(a) if he is not possessed of sufficient means (other
than property exempt from attachment in execution
of a decree and the subject-matter of the suit) to
enable him to pay the fee prescribed by law for the
plaint in such suit, or
(b) where no such fee is prescribed, if he is not
entitled to property worth one thousand rupees
other than the property exempt from attachment in
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execution of a decree, and the subject-matter of the
suit.
Explanation II.—Any property which is acquired
by a person after the presentation of his
application for permission to sue as an indigent
person, and before the decision of the application,
shall be taken into account in considering the
question whether or not the applicant is an
indigent person.
Explanation III.—Where the plaintiff sues in a
representative capacity, the question whether he is
an indigent person shall be determined with
reference to the means possessed by him in such
capacity. ”
11) Order 44 of Code of Civil Procedure provides for instituting an
appeal as an indigent person. The provision reads :-
“1. Who may appeal as an indigent person – Any
person entitled to prefer an appeal, who is unable
to pay the fee required for the memorandum of
appeal, may present an application accompanied
by a memorandum of appeal, and may be allowed
to appeal as an indigent person, subject, in all
matters, including the presentation of such
application, to the provisions relating to suits by
indigent person, in so far as those provisions are
applicable.”
12) The object and purpose of Order 33 and Order 44 of the Code of
Civil Procedure are to enable a person, who is ridden by poverty,
or not possessed of sufficient means to pay court fee, to seek
justice. Order 33 and Order 44 of the Code of Civil Procedure
exempts such indigent person from paying requisite court fee at
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the first instance and allows him to institute suit or prosecute
appeal in forma pauperis .
13) In A.A. Haja Muniuddin v. Indian Railways , (1992) 4 SCC 736,
this Court has observed:
“5. … Access to justice cannot be denied to an
individual merely because he does not have the
means to pay the prescribed fee.”
14) In Union Bank of India v. Khader International Construction ,
(2001) 5 SCC 22, this Court has held:
“ 20. Order 33 CPC is an enabling provision which
allows filing of a suit by an indigent person without
paying the court fee at the initial stage. If the
plaintiff ultimately succeeds in the suit, the court
would calculate the amount of court fee which
would have been paid by the plaintiff if he had not
been permitted to sue as an indigent person and
that amount would be recoverable by the State
from any party ordered by the decree to pay the
same. It is further provided that when the suit is
dismissed, then also the State would take steps to
recover the court fee payable by the plaintiff and
this court fee shall be a first charge on the subject-
matter of the suit. So there is only a provision for
the deferred payment of the court fees and this
benevolent provision is intended to help the poor
litigants who are unable to pay the requisite court
fee to file a suit because of their poverty.
Explanation I to Rule 1 Order 33 states that an
indigent person is one who is not possessed of
sufficient amount (other than property exempt from
attachment in execution of a decree and the
subject-matter of the suit) to enable him to pay the
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fee prescribed by law for the plaint in such suit. It
is further provided that where no such fee is
prescribed, if such person is not entitled to
property worth one thousand rupees other than the
property exempt from attachment in execution of a
decree and the subject-matter of the suit he would
be an indigent person.”
15) In R.V. Dev v. Chief Secretary, Govt. of Kerala, (2007) 5 SCC
698 , this Court has held:
“8. Order 33 of the Code of Civil Procedure deals
with suits by indigent persons whereas Order 44
thereof deals with appeals by indigent persons.
When an application is filed by a person said to be
indigent, certain factors for considering as to
whether he is so within the meaning of the said
provision are required to be taken into
consideration therefor. A person who is permitted
to sue as an indigent person is liable to pay the
court fee which would have been paid by him if he
was not permitted to sue in that capacity, if he fails
in the suit at the trial or even without trial.
Payment of court fee as the scheme suggests is
merely deferred. It is not altogether wiped off.”
16) The concept of indigent person has been discussed in Corpus
Juris Secundum (20 C.J.S. Costs § 93) as following:
“ § 93. What constitutes indigency: The right to
sue in forma pauperis is restricted to indigent
persons. A person may proceed as poor person
only after a court is satisfied that he or she is
unable to prosecute the suit and pay the costs and
expenses. A person is indigent if the payment of
fees would deprive one of basic living expenses, or
if the person is in a state of impoverishment that
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substantially and effectively impairs or prevents
the pursuit of a court remedy. However, a person
need not be destitute. Factors considered when
determining if a litigant is indigent are similar to
those considered in criminal cases, and include the
party's employment status and income, including
income from government sources such as Social
Security and unemployment benefits, the ownership
of unencumbered assets, including real or personal
property and money on deposit, the party's total
indebtedness, and any financial assistance
received from family or close friends. Not only
personal liquid assets, but also alternative sources
of money should be considered.”
17) The eligibility of person to sue in forma pauperis has been
considered in American Jurisprudence (20 Am. Jur. 2d Costs §
100) as thus:
“ § 100. Eligibility to sue in forma pauperis;
generally: The burden of establishing indigency is
on the defendant claiming indigent status, who
must demonstrate not that he or she is entirely
destitute and without funds, but that payments for
counsel would place an undue hardship on his or
her ability to provide the basic necessities of life
for himself or herself and his or her family.
Factors particularly relevant to the determination
of whether a party to a civil proceeding is indigent
are: (1) the party's employment status and income,
including income from government sources such as
social security and unemployment benefits; (2) the
ownership of any unencumbered assets, including
real or personal property and monies on deposit;
and finally (3) the party's total indebtedness and
any financial assistance received from family or
close friends. Where two people are living together
and functioning as a single economic unit, whether
married, related, or otherwise, consideration of
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their combined financial assets may be warranted
for the purposes of determining a party's indigency
status in a civil proceeding.”
18) To sum up, the indigent person, in terms of explanation I to Rule
1 of Order 33 of the Code of Civil Procedure, is one who is
either not possessed of sufficient means to pay court fee when
such fee is prescribed by law, or is not entitled to property worth
one thousand rupees when such court fee is not prescribed. In
both the cases, the property exempted from the attachment in
execution of a decree and the subject-matter of the suit shall not
be taken into account to calculate financial worth or ability of
such indigent person. Moreover, the factors such as person’s
employment status and total income including retirement
benefits in the form of pension, ownership of realizable
unencumbered assets, and person’s total indebtness and financial
assistance received from the family member or close friends can
be taken into account in order to determine whether a person is
possessed of sufficient means or indigent to pay requisite court
fee. Therefore, the expression “sufficient means” in Order 33
Rule 1 of the Code of Civil Procedure contemplates the ability
or capacity of a person in the ordinary course to raise money by
available lawful means to pay court fee.
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19) Admittedly the respondent is a retired Deputy Conservator of
Forest, Government of Kerala and drawing a pension of
` 10,500/-. It was also stated by him in his deposition before the
High Court on 03.01.2008 that his son is employed abroad and
does not regularly send him money and in response to a
suggestion, whether his bank account discloses the amount of
money sent by his son, he does not deny the suggestion.
However, it is noteworthy to mention that respondent has never
denied that his son sends him money. Furthermore, the
respondent had failed to establish that the amount of money
received from his son is not substantial or insufficient to pay
court fee by not producing passbook of his bank account. In our
considered opinion, non-production of bank account transaction
details, amounts to suppression of the facts and in view of this,
an adverse inference can be drawn against the respondent that he
is receiving a substantial or sufficient amount of money from his
son. Therefore, the amount of money received by the respondent
from his son and by way of pension amounts to a sufficient
means to pay court fee which disentitles him to be an indigent
person under Order 33 Rule 1 and Order 44 Rule 1 of the Code
of Civil Procedure.
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20) In the light of above discussion and facts and circumstances of
the present case, the respondent cannot be declared as an
indigent person in order to prosecute Regular First Appeals
before the High Court. Accordingly, the present appeals are
allowed and the impugned final order of the High Court dated
11.08.2008 is set aside. However, the respondent is granted
45 days time from today to deposit the court fee if he desires to
prosecute Regular First Appeals filed before the High Court.
Costs are made easy.
.......…………..........J.
[G.S. SINGHVI ]
………………………J.
[H.L. DATTU ]
New Delhi,
July 11, 2011
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