Dismissal Of Plaintiff’s Application To File Suit As Indigent Person Won’t Bar Him From Seeking Permission To File Appeal As Indigent Person

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The Supreme Court has ruled that a person is not barred from claiming exemption from paying court fees before the High Court under Order 44 of the Code of Civil Procedure (CPC), 1908 on account of being an indigent person, merely because such a claim under the corresponding provision of Order 33, CPC was rejected by the Trial Court.

The Division Bench of Justices AM Sapre and Indu Malhotra made the observation while allowing an appeal against a Kerala High Court judgment which had rejected the appellant’s claim for such exemption.
The appellant had initially claimed this exemption claim while initiating a civil suit to recover over Rs 74 crores in 1996 before and Additional Sub-Judge in Thiruvanathapuram. Given the value of his suit, the plaintiff had been expected to pay over Rs 3 lakhs as court fee. He filed the suit under Order 33 of the CPC, which exempts indigent persons from paying court fees that they are unable to afford given their economic status.

However, the respondents/defendants disputed the appellant’s claims of being unable to afford the court fee. The Trial Court, in 1998, rejected the claim that he was an indigent person.

In 2000, the Kerala High Court dismissed the plaintiff’s appeal against the Trial Court’s rejection of his Order 33 suit and directed that he will have to pay the applicable ad valorem court fees for his plaint within a month. The appellant, therefore, converted his case into a regular original suit before the Trial Court and also proceeded to file another related civil suit. After clubbing both suits together, the Trial Court dismissed the plaintiff’s case in 2011. In appealing against this verdict before the High Court, the appellant again claimed that he would not be able to pay the court fees applicable on his appeal as an indigent person. He submitted that his financial condition had worsened following the Trial Court verdict. Therefore, he claimed that he could not afford the court fee on the appeal. Accordingly, he filed his appeal under Order 44, CPC, which allows exemption from payment of court fees on appeals by indigent persons. However, the High Court rejected his exemption claim, this time in view of the fact that his earlier claim to file the Order 33 suit had been rejected by the Trial Court and affirmed by the High Court.

The Supreme Court has now clarified that the High Court’s approach in the matter was erroneous. The Bench noted that at every appellate stage the exemption claim is made, the concerned Court will have to independently inquire whether the claimant, on facts, is entitled to be treated as an indigent person and, therefore, be allowed exemption from payment of court fees. “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.

In their view, the dismissal of an 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 are 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 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.“

Therefore, the Court concluded by saying that: “We cannot, therefore, concur with the view taken by the High Court because the High Court did not hold an 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 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 their view, this reasoning of the High Court is not in conformity with the Order 33 read with Order 44 and hence cannot be upheld

Fortunately, the matter was remanded back to the High Court with directions to hold an independent inquiry into whether the appellant is eligible to claim the status of an indigent person under Order 44 and decide on the same preferably within 6 months. However, since the appellant was not allowed to file his trial court suit as an indigent person, the Court also ordered that it be verified whether he paid the appropriate court fee for his trial court suits.

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