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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