HON’BLE JUSTICE E.S. VENKATARAMIAH, HON’BLE JUSTICE A.P. SEN
UNION OF INDIA & OTHERS
Whether the appellant may or may not be allowed to appeal as an indigent person after the suit had been dismissed on a merit basis. And subsequently, can he pay the court fees and proceed to the case?
- The appellant filed a suit questioning the validity of an order dismissing him from the post of Senior Rakshak/Head Constable, Railway Protection Force, Delhi in the Court of the Sub Judge 1st Class, Delhi as an indigent person.
- That suit was dismissed after the contest.
- Against the decree passed in the suit, he filed an appeal before the High Court of Delhi along with an application under Rule 1 of order 44 of CPC, requesting that he may be allowed to appeal as an indigent person.
- That application was dismissed by the learned Single Judge of the High Court on May 14, 1981.
- The appellant then made an application praying for permission to pay the requisite court fee and to prosecute the appeal.
- That application was also dismissed by the same learned Judge by the order dated May 3, 1982
- The Special Leave Petition is directed against the above order.
- The Appellant contended that the reading of the aforesaid order shows that the learned Judge was of the view that he had dismissed the appeal itself on merits on May 14, 1981 when he dismissed the application for leave to appeal as an indigent person.
- The question which now arises for consideration is whether such an order can be passed at the stage at which it was passed, after the amendment of the Code of Civil Procedure by the Code of Civil Procedure (Amendment) Act, 1976, which came into force with effect from February 1, 1977.
- The application for leave to appeal as an indigent person was dismissed on merits, and not on the ground that the applicant was not an indigent person. Since that application was dismissed on merits, there was no question of granting time to the applicant to pay court fee".
RELEVANT PARAGRAPHS FROM THE ORIGINAL JUDGEMENT
- It is not necessary to set out Rule 3, which is only an improved version of the former Rule 2 here, as it merely deals with the mode of holding an inquiry into the capacity of the applicant to pay the court fee.
- By the above-said amendment made in the year, 1976 sub-rule (2) of Rule 1 of Order 44 of the Code of Civil Procedure is deleted. The result is that when an application made under Rule 1 of Order 44 of the Civil Procedure Code comes up for hearing, the only question which has now to be considered is whether the applicant is an indigent person or not. Any question relating to the merits of the case does not arise for consideration at that stage. If the application is granted, then the memorandum of appeal would have to be registered as an appeal and disposed of in accordance with law. When the appeal is posted for admission, the appellant has to satisfy the Court that the appeal merits admission.
- The appeal was allowed.
- Hon’ble Supreme Court set aside the order of the High Court passed on May 3, 1982, in C. M. No. 525 of 1981 and remanded the case to it to pass an order granting time to the appellant to pay the court fee as required by Rule 2 of Order 44 of CPC and to dispose of the case in accordance with the law, without being influenced by the circumstance that it had been rejected earlier on merits as observed by the learned Single Judge.
- The Supreme Court took into consideration the amendments done in Order 44 of the Code of Civil Procedure by Act 104 of 1976 and cited the three Rules, the result of which is that when an application made under Rule 1 of order 44 of Civil Procedure Code comes up for hearing, the only question which has now to be considered is whether the applicant is an indigent person or not. Any question relating to the merits of the case does not arise for consideration at that stage. If the application is granted, then the memorandum of appeal would have to be registered as an appeal and disposed of in accordance with the law.
- It also drew the attention of the High Court to the description of the applications filed before it under Order 44 of the Code of Civil Procedure and said that action may be taken to delete the word 'pauper' from their description, in view of the amendments made in 1976.
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