SUSHIL THOMAS ABRAHAM versus M/S. SKYLINE BUILD. THR. ITS PARTNER & ORS. on 7 January 2019

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SUPREME COURT REPORTS[2019] 1 S.C.R. 74

[2019] 1 S.C.R.

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SUSHIL THOMAS ABRAHAM

v.

M/S. SKYLINE BUILD. THR. ITS PARTNER & ORS.

(Civil Appeal No. 117 of 2019)

B

JANUARY 07, 2019

[ABHAY MANOHAR SAPRE AND INDU MALHOTRA, JJ.]

Code of Civil Procedure, 1908:

O. XXXIII, r.11 r/w O.XLIV, r.3(2) – Suit u/O. XXXIII r.1 seekingCpermission to institute suit as an indigent person – Permission refused– Thereafter suit dismissed – Plaintiff filed appeal before High Courtu/O.XLIV, r.1 again seeking permission to file the appeal as anindigent person – High Court declined the permission on the groundthat he was not allowed to institute the suit u/O. XXXIII, r.1 as anindigent person – On appeal, held: Dismissal of application madeDu/O. XXXIII, r.1 by the trial court in earlier round of litigation is nota 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 inquiryagain into the question at the appellate stage as to the status of theappellant as indigent person since the date of the decree, whichEhas been appealed from – High Court did not hold such inquiry –Case is remanded to appellate court for holding an inquiry ascontemplated u/r.3(2) of O.XLIV.

Allowing the appeal, the Court

HELD: 1. In view of the scheme of Orders XXXIII andFXLIV CPC and the facts of the present case, the case of theappellant (plaintiff) falls in Order XXXIII Rule 11 read with OrderXLIV Rule 3(2) CPC. [Para 28][80-F]

2. Though the appellant (plaintiff) was not allowed by theTrial Court/High Court in the earlier round of litigation to instituteGa suit as an indigent person under Order XXXIII Rule 1 of CPC,yet he was entitled to file an application/appeal under Order XLIVRule 1 of CPC and seek permission from the Appellate Court toallow him to file an appeal as an indigent person. [Para 29][80-G]

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3. Dismissal of application made under Order XXXIII Rule 1of CPC by the Trial Court in the earlier round of litigation is nota bar against the plaintiff to file an application/appeal under OrderXLIV Rule 1 before the Appellate Court. The grant and rejectionof such prayer by the Trial Court is confined only up to the disposalof the suit. This is clear from the reading of Rule 3(1) and 3(2) ofOrder XLIV, which contemplate holding of inquiry again into thequestion at the appellate stage as to whether the applicant is anindigent person or not since the date from the decree appealedfrom. [Para 30][80-H; 81-A-B]

4. Once the plaintiff files an appeal under Order XLIV, hiscase is governed by the provisions of Order XLIV. The applicantto whom the permission was granted or declined by the trial courtis entitled to apply before the appellate court to allow him tocontinue with the status or grant the status so as to enable him toprosecute the appeal as an indigent person. This is subject toapplicant filing an affidavit as required under Order XLIVRule 3(1) where the status is granted to him by the trial court. Ifthe averments in his affidavit are controverted by the State, aninquiry into the status of the applicant as to whether he is anindigent person since the date of decree appealed from ismandatory at the appellate stage as contemplated under OrderXLIV Rule 3(1). [Paras 31, 32][81-C-D]

5. Clause (2) of Order XLIV Rule 3 of CPC, deals with thecases where the applicant was declined the status of an indigentperson by the trial court in the suit. In such case, the applicant isentitled to say that he is or has become an indigent person sincethe date of decree appealed from and, therefore, entitled toprosecute the appeal as an indigent person. In such case also, aninquiry is required to be held to decide his status. [Para 33][81-E]

6. The High Court did not hold any inquiry as contemplatedunder Order XLIV Rule 3(2) of the Code and dismissed theappellant’s application made under Order XLIV Rule 1 mainlyon the ground that since the appellant was declined permissionto institute the suit as an indigent person by the Trial Court inthe earlier round and such rejection having been upheld by theHigh Court in appeal, he cannot be permitted to file an application/

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Aappeal under Order XLIV Rule 1 as an indigent person in appeal.This reasoning of the High Court is not in conformity with theOrder 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 holdingBan inquiry as contemplated under Order XLIV Rule 3 (2) of CPCor by the Trial Court, if directed by the Appellate Court to theconcerned Trial Court to do so and depending upon the casemade out by the applicant/appellant in the inquiry, the AppellateCourt will pass appropriate orders accordingly. [Para 35][82-A-B]

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8. Since the appellant (plaintiff) was not allowed to file suitas an indigent person by the trial court and the said order becamefinal, he was required to pay the ad valorem court fees on theplaint to enable the trial court to decide the suit on merits. TheCourt will, therefore, verify as to whether the plaintiff paid theDsaid ad valorem court fee in the trial court or not. If it is foundthat he has not yet paid the said court fees, then the same berecovered from the appellant (plaintiff) in accordance with theprocedure provided under Order XXXIII CPC. [Para 38][ 8 2 -D-E]ECIVIL APPELLATE JURISDICTION: Civil Appeal No. 117 of2019.

From the Judgment and Order dated 10.03.2014 of the HighCourt of Kerala at Ernakulam in CMC (P) No. 78 of 2011 in R.F.A. No.of 2011F

C. N. Sreekumar, Prakash Ranjan Nayak, Amit Sharma,Ms. Malavika B. Pillai, Advs. for the Appellant.

Anil Kaushik, Abhishek Mishra, Akash Bhardwaj, Ms. ShilpaSingh, Advs. for the Respondents.

GThe Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. Leave granted.

2. This appeal is directed against the final judgment and orderdated 10.03.2014 passed by the High Court of Kerala at Ernakulam inCMC No.78/2011 in RFA No…./2011 whereby the Division Bench ofHthe High Court dismissed the CMC petition filed by the appellant herein.

3. The facts of the case lie in a narrow compass as would beclear from their narration infra so also the controversy which is involvedin this appeal is a short one.

4. The appellant is the plaintiff and the respondents are thedefendants in the civil suit out of which this appeal arises.

5. The appellant filed a civil suit against the respondents in theCourt of 1[st] Additional Sub-Judge, Thiruvananthapuram being OP(indigent) No. 38/96 for recovery of Rs.74,66,107/-. This suit was filedunder Order 33 Rule 1 of the Code of Civil Procedure, 1908 (hereinafterreferred to as “the Code”). The appellant alleged that he is unable topay ad valorem court fees of Rs.3,96,610/- which was payable by himon the claim made in the suit and therefore he be granted permission toinstitute the suit as an indigent person.

6. The respondents (defendants) contested the claim by filingwritten statement and denied the appellant’s claim including his prayerto declare him as an “indigent person”.

7. According to the respondents, the appellant was in a positionto pay the ad valorem court fees of Rs.3,96,610/- on the plaint becausehe had sufficient means to pay the ad valorem court fees. Therespondents contended that the appellant was, therefore, not entitled toclaim the status of an “indigent person” within the meaning of Order 33Rule 1 Explanation I (a) & (b) of the Code for filing a suit under Order33 of the Code.

8. The Trial Court by order dated 19.08.1998 rejected the prayermade 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 heldthat 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 appealagainst the aforementioned order of the Trial Court in the High Courtbeing CMA No.248 of 1998. By order dated 22.02.2000, the High Courtdismissed the appeal and upheld the order of the Trial Court. The HighCourt granted the plaintiff one month time to pay the requisite ad valoremcourt fees on the plaint.

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10. The plaintiff then converted his suit in the Original Suit (OSNo.227/2000). He also filed another Civil Suit (OS No.921/95) seekingtherein the declaration and injunction against the defendants in relationto the subject matter of the first suit. Both the suits were clubbed togetherfor trial. By judgment and decree dated 12.04.2011, the Trial Courtdismissed the suits.

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11. The plaintiff (appellant) felt aggrieved and filed an applicationaccompanied by the memorandum of appeal before the High Court ofKerala under Order 44 Rule 1 of the Code. The appellant alleged in theapplication that his financial condition is further deteriorated from whatit was earlier when he had filed a civil suit and, therefore, he is unable toCpay the ad valorem court fees on the memorandum of appeal.

12. The plaintiff (appellant), therefore, prayed that he be allowedto file the first appeal against the decree of the trial court as an “indigentperson” under Order 44 Rule 1 of the Code without payment of advalorem court fees payable on the memorandum of appeal.

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13. By impugned order, the High Court rejected the application.The High Court in substance held that in the light of the earlier rejectionof 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 samehaving been upheld by the High Court in the appeal, the plaintiff is notEentitled to file an application/appeal under Order 44 Rule 1 of the Codeagainst the decree of the trial court.

14. In other words, it was held that the plaintiff (appellant) has tofile a regular first appeal under Section 96 of the Code against the decreeof the trial court on payment of ad valorem court fees on thememorandum of appeal payable in accordance with the provisions ofthe Court Fees Act.

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15. It is against this order of the High Court, the plaintiff feltaggrieved and filed the present appeal by way of special leave in thisCourt.

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16. So the short question, which arises for consideration in thisappeal, is whether the High Court was justified in dismissing the plaintiff’sappeal and rejecting the prayer made by the plaintiff to allow him to filean appeal under Order 44 Rule 1 of the Code as an “indigent person”.

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17. Heard Mr. C.N. Sreekumar, learned counsel for the appellantand Mr. Anil Kaushik, learned counsel for the respondents.

18. Having heard the learned counsel for the parties and on perusalof the record of the case, we are inclined to allow the appeal, set asidethe impugned order and remand the case to the High Court for decidingthe appeal afresh as directed hereinbelow.

19. On perusal of Order 33 of the Code, we find that the plaintiffis entitled to file a suit as an “indigent person” under Order 33 of theCode provided he is able to prove that he is not possessed of sufficientmeans to pay the requisite court fees prescribed by law for the plaint inthe suit filed by him.

20. The question as to whether the plaintiff is possessed ofsufficient means to pay the requisite court fees for the plaint in the suitas per the provisions of Court Fees Act is required to be decided byholding an inquiry as prescribed under Rules 4 to 7 of Order 33 of theCode by the trial court.

21. While examining this question, the Court cannot take intoconsideration the two properties. First-the property, which is exemptedfrom the attachment in execution of a decree and the second-which issubject matter of the suit. In other words, the aforementioned twoproperties cannot be regarded as “possessed” by the person concernedfor determining his financial capacity to pay the requisite court fees onhis claim in the suit.

22. Similarly, if the person concerned acquires any property afterpresentation of the application for grant of permission to sue as indigentperson but before the decision is given on his application, such acquiredproperty has to be taken into consideration for deciding the question asto whether he is an indigent person or not.

23. Order 33 Rule 7(3) empowers the court to either allow orrefuse to allow the applicant to sue as an indigent person. Rule 9empowers the court to withdraw the permission granted under Rule7(3) at the stance of defendant or State counsel if any of the grounds setout in clauses (a) to (c) is made out. Order 33 Rule 11 as amended bythe State of Kerala inter alia provides that when the plaintiff isdispaupered, the Court may order the plaintiff to pay the requisite courtfees within a time fixed by the Court.

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A24. Order 44 of the Code applies to appeals. By virtue of Order44 Rule 1 of the Code, the provisions of Order 33 are made applicable tosuch appeals.

25. Order 44 Rule 3 (1) of the Code prescribes the procedure inrelation to the inquiry which is required to be held to decide the questionBas to whether the applicant, who has filed the application/appeal underOrder 44, can be declared as an indigent person or not. The Rule saysthat where the applicant is already allowed by the Trial Court to sue asan indigent person then in such circumstances, no further inquiry in respectof the question as to whether he is an indigent person or not is necessaryprovided such person files an affidavit stating therein that he has notCceased to be an indigent person since the date of decree appealed from.

26. However, if the government lawyer disputes the statement ofthe applicant made in the affidavit, then the inquiry into the question asto whether he is an indigent person or not shall be held by the AppellateCourt or Officer of the Court.D

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

28. Having examined the scheme of Orders 33 and 44 of theCode and the facts of this case, we find that the case of the appellantF(plaintiff) falls in Order 33 Rule 11 read with Order 44 Rule 3(2) of theCode.

29. Though the appellant (plaintiff) was not allowed by the TrialCourt/High Court in the earlier round of litigation to institute a suit as anindigent person under Order 33 Rule 1 of the Code, yet in our consideredGopinion, he was entitled to file an application/appeal under Order 44Rule 1 of the Code and seek permission from the Appellate Court toallow him to file an appeal as an indigent person.

30. In our view, the dismissal of application made under Order 33Rule 1 of the Code by the Trial Court in the earlier round of litigation is H

not a bar against the plaintiff to file an application/appeal under Order 44Rule 1 of the Code before the Appellate Court. The grant and rejectionof such prayer by the Trial Court is confined only up to the disposal ofthe suit. This is clear from the reading of Rule 3(1) and 3(2) of Order44, which contemplate holding of inquiry again into the question at theappellate stage as to whether the applicant is an indigent person or notsince 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 towhom the permission was granted or declined by the trial court is entitledto apply before the appellate court to allow him to continue with thestatus or grant the status so as to enable him to prosecute the appeal asan indigent person

32. This is subject to applicant filing an affidavit as required underOrder 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 inquiryinto the status of the applicant as to whether he is an indigent personsince the date of decree appealed from is mandatory at the appellatestage as contemplated under Order 44 Rule 3(1).

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

34. We cannot, therefore, concur with the view taken by the HighCourt because the High Court did not hold any inquiry as contemplatedunder Order 44 Rule 3(2) of the Code and dismissed the appellant’sapplication made under Order 44 Rule 1 of the Code mainly on theground that since the appellant was declined permission to institute thesuit as an indigent person by the Trial Court in the earlier round andsuch rejection having been upheld by the High Court in appeal, he cannotbe permitted to file an application/appeal under Order 44 Rule 1 of theCode as an indigent person in appeal. In our view, this reasoning of theHigh Court is not in conformity with the Order 33 read with Order 44and hence cannot be upheld in the light of our discussion made above.

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A35. In view of the foregoing discussion, the appeal succeeds andis accordingly allowed. The impugned order is set aside. The case isremanded to the Appellate Court for holding an inquiry as contemplatedunder Order 44 Rule 3 (2) of the Code or by the Trial Court, if directedby the Appellate Court to the concerned Trial Court to do so anddepending upon the case made out by the applicant/appellant in the inquiry,Bthe Appellate Court will pass appropriate orders accordingly.

36. In other words, if the appellant is able to prove in the inquirywith the aid of evidence that he is or has become an indigent personsince the date of decree appealed from and is therefore unable to paythe ad valorem court fees on memorandum of appeal, his applicationCwill be allowed else dismissed.

37. Let the Appellate Court decide the aforesaid questionpreferably within six months and then proceed to decide the appealaccordingly in accordance with law.

D38. Before parting, we may observe that since the appellant(plaintiff) was not allowed to file suit as an indigent person by the trialcourt and the said order became final, he was required to pay the advalorem court fees on the plaint to enable the trial court to decide thesuit on merits. The Court will, therefore, verify as to whether the plaintiffpaid the said ad valorem court fee in the trial court or not. If it is foundEthat he has not yet paid the said court fees, then the same be recoveredfrom the appellant (plaintiff) in accordance with the procedure providedunder Order 33 of the Code.

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Kalpana K. Tripathy

Appeal allowed.

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