Holding

A rejection of an application under Rule 1 of Order 44 can only pertain to the applicant’s indigent status; the court must, under Rule 2, grant time to pay the fee and allow the appeal to proceed.

Summary

Ram Sarup, dismissed from service, filed a suit as an indigent person which was dismissed. He appealed to the Delhi High Court as a pauper under Rule 1 of Order 44, CPC, seeking permission to appeal without paying court fees. The High Court dismissed the application by a one‑word order and also rejected a subsequent request to pay the fee, stating the earlier dismissal was on merits. The Supreme Court examined the effect of the 1976 amendment to Order 44, which deleted the sub‑rule requiring a merit inquiry at the Rule 1 stage, and held that a rejection under Rule 1 can only relate to the applicant’s indigent status, not the merits of the appeal. Consequently, the Court ruled that the High Court should have exercised Rule 2 to grant time for payment of the fee and to allow the appeal to be prosecuted. The order of the High Court was set aside and the matter remanded for appropriate directions.

Issues considered

Whether a dismissal of an application under Rule 1 of Order 44 CPC on the ground of merits is permissible after the 1976 amendment.
Whether the High Court was required to grant time under Rule 2 of Order 44 to pay the court fee after rejecting the Rule 1 application.
What is the effect of the deletion of sub‑rule (2) of Rule 1 of Order 44 by the 1976 amendment?

Legislation cited

Code of Civil Procedure, 1908s. Order 44 Rule 1, s. Order 44 Rule 2
Code of Civil Procedure (Amendment) Act, 1976s. Order 44 Rule 1 (as amended), s. Order 44 Rule 2 (as amended)

Subjects

Order 44indigent personpauper appealCivil Procedurecourt feeappeal admission1976 amendmentspecial leave

Judgment

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•
. .
.. .
RAM SARUP .-- A
v. '.

.t UNION OF INDIA AND ORS.

October 6, 1983 -B
(A. P .. SEN AND E.· S.' VENKATARAMIAH, JJ.]

Cude of Civil Procedure i.908-0rder 44 Rule 1 & 2-,-Suit by indigent'
person dismissed-Appeal with an application under rule· I filed in High Couri ·
for permission- to appeal as an indigent person-Application under rule 1 disposed
·ofby_a one word order •dismissed'-~pplicalion made for permission. to pay
c
C.ourt fee and prosecute appeal.....:.This application also di$missed, on ground earlier
application dismissed on. 111'erits-Such order- Whether valid ~d justified.

The Code of Civil Procedure '(Amendment) Acl 1976 (Act No. 104 of
1976)~0rder 44 Rule I & 2 C. P. C.-Amendment of-Explained.
D
The appelli!.nt filed ta suit as an indigent persori in.t_he Subordin3:te Court
questioning the validity of an· order dismissing him from service. The said
auit was dismissed after contest. He filed an appeal in the High court as a ·
pauper along with an application un.der Rule 1 of Order 44 Code Of Civil
Prodecure requesting that he may be' all~wed to appeal as an indigent person.
The application was dismissed by a Single judge by a one word order,
1'dismissed". The itppellant thereupon m·ade an application praying for
permission tO pay the requisite court fee and t:o presecute the appeal. That
E
--application was also dismissed by the saffie Judge oO the ground thai as the
applic'ation for leave to· appeal as an indigent person was dismissed on merits~
and not on the groUnd that the ·applicant was not an -indigeii.t person, there
"'.as no question of granting time to the applicant to pay court fee.

Allowing tho .Appeal to this Court i

HELD : I (i) The Order of.the High Court is, clearly, unsustainable.
What was rejected in the instant case was the application under Rule 1 of
Order 44 of the Code of Civil Procedure. The High· Court ·should have
therefore made all order as required by ·Rule 2 granting time to the appellant
to.pay the requisite court fee and permit him to prosecute the appeal. The
High ·Court failed to do so even when ail application was made for that G
purpose. (280 G-HJ

(ii) The High.Court has lost sight of the elf.Ct -of the amendment of
Rule 1 of.Order 44 of the Code of Civil Procedufe by the omissie:n of the
former sub-rule (2) ~f Ruic !. [280 DJ
H
2. After the amendment of the Code of Civil Procedure by the Code of
Civil Procedure (Amendment) Act 1976, (Act No. 104of1976) ·which came
into force with effect from February 1, 19.77 the rejection of the application
.. l
•

stiP!uir.!B cotlR't ruirloRTs I1984J 1 s.c.&.
' . • .•.J ,, ·t. ..... ~..... ..~
made under Rule I of Order 44 of the Code of. Civil Procedure can· only 1mean
A that the Court is not satisfied about the claim Or the applicant that he is an
indigellt person and nothirig more. It does n~t,·however, amount to a finding·
that the appeal is not a fit one for admission on merits. Otherwise Rule 2 of
Order 44 which PerlititS, PaYmerittir co'Ur"t ree 8fter the application under
Rule I is re]ected, would become meaningless. [277 G; 280 D-E}

3 (i) By the amendment made in the year 1976 sub-rule (2) of Rule I ·of
B Order 44 of the Code of Civil Procedure was deleted. The result is that when
an applicatiorl' l1Ddei RuiC 1 of Order 44 of the Code of Ci~il Procedure comes
up for hearing, the Only question to b.e considered is whether the applicant is
a.ri fridig-Cni.Pf:rsiJn Or not. AnY queStion felating to the merit's of the case
d·oes'tiot' aiise.fOr cOnSideratic}n.'· at that stage. If the application is ~ranted,
then' the inCinOfindUm Of 8.PpCat·woutd haVe to be registered aS an appeal and
diSPoS1ed.'0fin;accorda'nce With Jaw. When the ap°peal is posted.for adffiission
c tli'e· app~frarit ha·s· t'ci satisfy the Court ihat the" appeal meritS 3dn1iSsiOn. At
that stage the aPPellatit may dra-W tiie a:ttentio~· of the Court nOt' nle:reiY to the
1

judgment and decree appealed from but also .to all the relevant r.ecords in the
CaSe to' sUtiStintiite his c1ailll' that tbe·-appea1 deserves to be admitted.
. . · [279 o:H;'280 A-BJ

(ii)' Rule 2' of Order 44 as it noW stands requires that viihere an appli~
D
cation is rejected under Rule I. thereof, the Court may While rejecting the ·
aP~lic3.tiori, alloW the aPPlicant to pay the requisite c·ourt fee within such
ticrle aS'nia"Y be fiXed· by the Court or e~teaded by it from time to time. and
rip'Oll siiCh' pay1nent, the riiemorandUffi of appeal in respect of Which sUCh fee
is' payable shall hav'e the sa1ne forCe and ·effect as if such fee had, been paid in
the· first instance. If the requisite "court fef(_ is paid the appeal has to be
E registered· and posted; for adniission. [280 B-C]
•
C1v1i.. APP!lJ-LATE JuRisDICTION Civil Appeaf No. 8690 of
1983.

Appeal by Special Leave from the Judgment and Order dated
F the 3rd day of May, 1982 of the Delhi High Court in C.M. No.
6so'on9so.

M.B. Lal for the Appellant:
Dalveef Bhandari, R.N. Poddar and c.v. Subbti' .R~o for the
G Respondents:
.,
The Judgment otthe Court was delivered by
VEN~ATARAMIAH, ·J. This appe~l by special leave' is file~ against
the order of the High Court of Delhi dated May· 3, 1982. m C. M.
H . No: 525'of !98l'{in C.M. (Pauper) No. 650 o{ i980) by which. the
. High Court refused permission to the appeilahi' t(;. prosbcute' an
appealwliich'he ha<i' presented eailler' as an judigen person~ after
liAM SARUP v. UNION (Yenkataramiah, J.)
l
paying the court fee within such time as may be fixed by the 'court
as provided in Rule 2 of Order 44 of the, Code of Civil Procedure, . A
1908.

The facts of the case are these : The appellant filed a sui~
. questioning the validity of an order dismissi.ng him from the post of
Senior Rakshak/Head Constable, Railway Protection Force, Delhi
in .the court of the Sub Judge 1st Class, Delhi as anindigent person. B
That suit was dismissed after contest. Against the decree passed in
the suit, ·he filed an' appeal before the High Court of Delhi in C.M.
(Pauper) No. 650 of 1980 alqng with an application under Rule 1 of
Order 44 of the Code of Civil Procedure requesting that he may be
allowed to appeal as an indigent persqn. That application was dis- c
missed by the learned Single Judge of the High Court by.a, one word
order stating 'Dismissed' -0n May ·14, 1981. The appellant thereupon
• made an application No; C. M. 525 Of 1981 praying for permission
to pay the requisite court fee and to prosecute the appeal. That
application was also dismissed by the same learned ~udge by the
order dated May 3, 1982 in which he inter alia observed thus: D

"The application for leave . to oppeal as an indigent
pers9n was dismiS!ed on merits, and not on the ground
that the applicant was not indigent person. I could not
ha".e dismjssed it on the latter ground wi~hout holding E
an inquiry as to the of the applicant. Since that applica•
.. tion was dismissed on merits, there was no question of
granting time to the applicant to pay oourt fee".

This appeal is directed against the above order. A reading
•. of the aforesaid order shows that the learned Judge was of the view p
that he had dismissed the '!Ppeal 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 (Act No. 104 of 1976) which came
G
into force with effect from February 1, 1977. Prior to the above-
said amendD!ent, Order 44 of the Code of Civil Procedure contained
two Rules. Rule 1 of order 44 of the Code of Civil Procedure which
is material for purposes of this case·read as follows: H
• "l. (1). Any person entitled to prefer an appeal, who
is unable to pay the'fee required for the memorandum of
•

SUPREME CoURT REPORtil (i984j j s.c.R•. ·
. . . ,
. appeal, may present an application accompanied by a
A memorandum of appeal, and may be allowed to appeal as
a pauper, subject, 'in all matters, including the presentation .
of such application, to the provisions relating to suits by
paupers, in so far as those provisions are applicable.
(2) The Appellate Court, afier fixing a day for .hear·
8 ing the applicant or his pleader and hearing him ·accord•
ingly if he appears on that day, and upon a perusal of the
application and of the judgment and decree appealed from,
shall reject the application, unless it sees reason to think
that the decree is contrary to law or to some usage having
c the force of Jaw, or is otherwise erroneous or unjust".
.
It is seen from the above provision (as ir stood prior to its
.amendment) that an appellant who wished to file an appeal without
payment of_ the requisite court fee had to file an application accom- '
• panied by the. memorandum of appeal praying for permission to
D prosecute the appe11l as an indigeni person. On the presentation of
such an application, the appellate court aftee fixing a day for hear-
ing the application or his pleader and hearing him accordingly° if he
appears on that day and upon a perusal of the application and of
the judgment and decree appealed· from was obliged to reject the
application unless it saw reason to think that the decree was con-·
E trary to law or lo some usage having the force of law or was other-
wise erroneous of unjust. Under Rule 2 of Order 44 of the Code of '
Civil·Procedure as it stood prior to its amendment the inquiry i~o
the pauperism of the. applicant could be niade either by the appellate.
court of under the orders of the app,ellate court by the court from
F whose decision the appeal had been preferred. No further inquiry
)
on this question was, however, necessary if the applicant had been .
allowed to sue or appeal as a pauper in the court from whose decree
the appeal was preferred, unless the appellate court saw cause to
direct such inquiry. It is thus seen that under the law in force prior
to.the amendment by Act No. 104 of 1976 it Was necessary for a
G person who wanted to file' an appeal in Jonna pauperis, as it used to
be called then, to establish not merely that he had no me11ns to pay
the requisite court fee but also that the deeree appealed against was
contrary to law or to some usage haying the. force of. law or was ·
otherwi;e erroneous or unjust and that the dismissal of an appliea-
H tion ·to file an appeal in for ma pauperis could be either on .the ground ., .
that the applicant . was not a pauper, or on the ground that the
decree was .not contrary to layv or to some usage having the force
. !!.AM SARUP Y. UNION (Venkatatamiah, J.) 279

,t of Jaw or was otherwise erroneous or unjust, or both. It was, there-
fore, necessary for the Court to examine the case in merits also A
though for the limited purpose of sub-rule (2) of Rule I of Order 44
of the Code of Civil Procedure before either granting or rejecting an ·
t- application to file an appeal in forma·pauperis.

After the amendment of Order 44· of the Code of Civil Proce-
dure by Act ·104 of 1976, there a're three Rules in it. Rules I and 2
thereof now read as. follows :
•
"L (I) Any person entitled to prefer an appeal,
who is unable to pay tl)e fee required for the memoran-
dum of appeal, may present an application accompanied
.by . a memorandum of appeal, and may be allowed to
c
appeal is an.indigent person; subject, in all matters, inclu-
.ding the presentation of such application, to the provisions
relating to suits by indigent person, in so far as those
. provisions are applicable.
D
·. 2. Where an application is· rejected pnder rule I, the
.Court may, while rejecting 'the application, allow the
applicant to pay the requisite court-fee, within such time
as may he fixed by the Court or extended by it from time
to timej. and upon such payment, the memorandum of E
appeal in respect of which such fee is payable shall have
the same force and effect as ·if such fee had geen paid fo ·
the first instance."

It is not necessary to set out· Rule 3 which is o~ly an improved
version of the former Rule 2 here as it merely ·deals with the mo.de
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 I of Order 44 of the Code of Civil Procedure is deleted.
The result is th.at when an application made under Rule I ·of 'Order,
G
, r ,

44 of Civil Procedure Code comes up for hearing, the· only question ·
which has now to be considerred is whether the applicant is an indi-'
gent' person or not. Any question relating to the merits of the case
· does not arise for consideration at that stage. If the applicaiion is
H
granted, then th.e memorandum of appeal would have to be registered
as ·ati appeal and diSposed of in· accordapce · with· Jaw, · Whe11·- the
appeal is posted for admission the appellant has to satisfy t_he Court
~80 SUPREME COURT REPORTS [1984] I s.c.R.

that the appeal merits admiSsion. At that stage the appellant may
A draw the'attention of the .Court not merely to the judgment and
decree· appealed from but al~o to all the relevant records in the case
to substantiate his claiin that the appeal deser~es to · be admitted. •
Rule 2 of Order 44 as it now stands. requires that where an appli-
cation is rejected under Rule I thereof tbe Court may while. rejecting .
B the application, allo.w the applica'nt to pay the requisite court fee
w_ithin such time as may be fixed · by the Court or extended by it
from time to time and upon such payment, the memorandum of
appeal in respect, of which such fee is payable shall have the same
force and effect as if such fee had been paid in tlie first instance. If
the,rquisite court fee is paid the appeal has to be registered and
c posted for admission.

From the foregoitlg _it appears that the High Court lost sight
of the effect of the amendment of Rule I of Order. 44 of the Code
of Civil Procedure by the omission of the former s'ub-rule (2) of
D Rule 1. A rejection of the application made under. Rule I of Order
44 now can only mean tha,t the Court is not satisfied about the claim
of the applicant that he is an indigent person and nothing more. It
does not, however, amount to a finding that the appeal is not a fit
one for admission on merits. Otherwise Rule 2 of Order -44 which
permits payment of court fee after the application under Rule I is
'E rejected, would become meaningless.
•
It is no doubt irue that the learned Judge of the High Court
states that he had dismissed the appeal on merits when he said
'dlsmissed' on May 14, 1981, but the appellant· COI)tends that that
could not he the meaning to be attached to that Order having regard
F
to the law now in force. It is likely that having regard to the· true
legal position the appellant may not have placed at the time .when the
application came up for consideration before the High Court all his
iUbmissions which he would have made if the appeal had been
posted for admission. In this ,situation the possiblity. of the occasion-
G
ing of failure of justice cannot be ruled out. Since what was
rejected was the application under Rule I of Order 44 of the Code
of Civil Procedure the High Court should have made an order as
required by Rule 2 thereof granting time to the appellan,t to pay. the
H requisite court fee and permitting him to prosecute the appeal.' The
High Court failed to do so even when an application was made for .,,., -
thlit, purpose. 'I;he order of the Hi~ Court is <;!early un$Ustajna~le.
RAM SARUP V. UNION (Venkataramiah, J;) 281

We, therefore, set aside the order of the High Court passed on
May 3, 1982 in C. M. No. s25 of 1981 and remand the case to it · A
to pass an order granting time to the appellant to pay the court fee
as required by Rule 2 of Order 44 of the Code of Civil Procedure and

, )-
to dispose of the c~se in a~cordance with law without being injluen·
ced ~y the citcull!stance that it had been rejected earlier on merits as
observed by the learned Single Judge.
B
Before concluding this judgment we wish to draw the· attention
of the High Court to the desc~iption of the applications filed before it
under Order 44 of the Code of Civil Procedure. Action may be taken
to delete the word. 'pauper' froni their description in view of the
c
. ·-~
.'
amendments made in 1976.

The appeal is accordingly allowed. No order as to costs.•

N.V.K. Appeal a/fowed.

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