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

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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

respondents in the Court of 1st 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  ad valorem  court fees.  The

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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