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Supreme Court explained the relation between Order 33 and 44 and their concerned Rules in the suit

Esheta Lunkad ,
  12 September 2020       Share Bookmark

Court :
Supreme Court of India
Brief :
In SC's opinion the plaintiff 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. The dismissal of the application made under Order 33 Rule 1 by Trial Court is not a bar against the plaintiff to file an application/appeal under Order44 Rule 1before the Appellate Court.
Citation :
Appellant: Sushil Thomas Abraham Respondent: M/S Skyline Build. Thr. Its Partner & Ors. Citation: Civil Appeal No. 117 of 2019

Bench:

  • Abhay Manohar Sapre
  • Indu Malhotra

Issue:

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 CPC as an ‘indigent person’.

Facts:

• The appellant filed a civil suit against respondents in the Court of 2st Additional SubJudge, Tiruvnanthapuram for recovery of Rs. 74,66,107/- the suit was filed under Order 33, Rule 1 of the CPC, 1908. The appellant alleged that he was unable to pay ad valorem court fees of Rs. 3,96,610/- and therefore he should granted the permission to file the suit as an indigent person.

•  The respondents contested the claim by filing a written statement and denied his prayer to be declared as an indigent person. According to the respondent the appellant was in the position to pay the court fees as he had sufficient means to pay and therefore he should not be entitled to claim the status of indigent person under Order 33 of the Code.

• The Trial Court rejected the prayer made by the appellant on the ground that he failed to make out a case that he is an ‘indigent person’. The aggrieved plaintiff (appellant herein) filed appeal against the order of the Trial Court in the High Court. The HC dismissed the order and upheld the order of the Trial Court and granted the plaintiff one month time to pay the requisite ad valorem court fees on the plaint.

• The plaintiff then converted his suit in the Original Suit and filed another Civil Suit seeking declaration and injunction against the defendants in relation to the subject matter of the first suit. Both the suits were clubbed together for trial. Trial court dismissed the suits. The plaintiff filed an application accompanied by an memorandum of appeal before the Kerala HC under Order 44 Rule 1 of the Code without payment of court fees on the memorandum of appeal.

• By impugned order, the HC rejected the application and held that in the light of earlier rejection (prayer to file suit as an indigent person) by the Trial Court and the same upheld by the HC in the appeal, the plaintiff is not entitled to file an application/appeal under Order 44 Rule 1 of CPC against the decree of the Trial Court. Against this order of the HC, the plaintiff filed the appeal by way of special leave in the Supreme Court.

• On hearing both the parties of the suit the SC allowed the appeal and set aside the impugned order; remanded the case to the HC for deciding the appeal afresh and gave directions as well.

• The SC held that the plaintiff was entitled to file a suit as an indigent person provided he prove that he did not have sufficient means to pay the requisite court fees. Whether the plaintiff possesses sufficient means is to be decided by conducting inquiry as prescribed under Rules 4 -7 of Order 33 of CPC by Trial Court. If the person concerned acquires property after presentation of application to sue as an indigent person and before the judgement, the acquired property is to be taken into consideration for the decision.

•  The Court also explained the relation between Order 33 and 44 and their concerned Rules. After examining the scheme of Order 33 and 44 of the Code and the facts of the case the case of plaintiff falls under Order 33 Rule 11read with Order 44 Rule 3(2) of the CPC, said the Court.

Judgment:

•  In SC's opinion the plaintiff 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. The dismissal of the application made under Order 33 Rule 1 by Trial Court is not a bar against the plaintiff to file an application/appeal under Order44 Rule 1before the Appellate Court.

• Once the appeal is filed under Order 44 Rule 1, the case should b governed under the same provisions. The SC did not concur with the view of the High Court and hence cannot be upheld.

• If the appellant is able to prove in the inquiry with the aid of evidence that he is an indigent person since the date of decree appealed from and is therefore unable to pay the ad volorem court fees on memorandum of appeal, his application will be allowed else dismissed. The Appellate Court would decide the matter in six months and then proceed to decide the appeal in accordance with law. The court would first verify if the plaintiff has paid the said ad volorem court fee in the trial court; if not the same would be recovered from the appellant in accordance with procedure provided under Order 33 of the Code. 

 

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Published in Constitutional Law
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