Holding

A prior dismissal under Order 33 does not bar a fresh application under Order 44, and the appellate court must hold an inquiry under Order 44 Rule 3(2) to determine the plaintiff's indigent status.

Summary

The plaintiff filed a civil suit seeking to be treated as an indigent person under Order 33 Rule 1 of the CPC, but the trial court rejected his application and the High Court upheld that rejection. He later filed an appeal against the trial court's decree and sought permission to file the appeal as an indigent person under Order 44 Rule 1, which the High Court also dismissed, holding that the earlier denial barred the new application. The Supreme Court held that a dismissal under Order 33 does not preclude a fresh application under Order 44, and that the appellate court must conduct a fresh inquiry under Order 44 Rule 3(2) to determine the plaintiff's indigent status as of the date of the decree. The Court remanded the matter to the appellate court to hold such an inquiry and to decide the appeal based on its findings. It also directed verification of whether the plaintiff had paid the ad valorem court fees for the original suit, with recovery if unpaid.

Issues considered

Whether a dismissal of an application under Order 33 Rule 1 bars a subsequent application to file an appeal as an indigent person under Order 44 Rule 1.
Whether the appellate court must conduct a fresh inquiry under Order 44 Rule 3(2) to determine indigent status.
Whether the plaintiff is required to pay the ad valorem court fees for the original suit when his earlier application for indigent status was rejected.

Legislation cited

Code of Civil Procedure, 1908s. Order 33 Rule 1, s. Order 33 Rule 11, s. Order 33 Rule 3, s. Order 33 Rule 7, s. Order 33 Rule 9, s. Order 44 Rule 1, s. Order 44 Rule 3(1), s. Order 44 Rule 3(2)

Subjects

indigent personOrder 33Order 44Civil Procedurecourt feesappealinquirypermission to sue

Judgment

74 [2019]
SUPREME COURT 1 S.C.R. 74
REPORTS [2019] 1 S.C.R.

A SUSHIL THOMAS ABRAHAM
v.
M/S. SKYLINE BUILD. THR. ITS PARTNER & ORS.
(Civil Appeal No. 117 of 2019)
B JANUARY 07, 2019
[ABHAY MANOHAR SAPRE AND INDU MALHOTRA, JJ.]
Code of Civil Procedure, 1908:
O. XXXIII, r.11 r/w O.XLIV, r.3(2) – Suit u/O. XXXIII r.1 seeking
C permission to institute suit as an indigent person – Permission refused
– Thereafter suit dismissed – Plaintiff filed appeal before High Court
u/O.XLIV, r.1 again seeking permission to file the appeal as an
indigent person – High Court declined the permission on the ground
that he was not allowed to institute the suit u/O. XXXIII, r.1 as an
indigent person – On appeal, held: Dismissal of application made
D
u/O. XXXIII, r.1 by the trial court in earlier round of litigation is not
a bar against the plaintiff to file an application/appeal u/O.XLIV,
r.1 – Rules 3(1) and 3(2) of O.XLIV contemplate holding of inquiry
again into the question at the appellate stage as to the status of the
appellant as indigent person since the date of the decree, which
E has been appealed from – High Court did not hold such inquiry –
Case is remanded to appellate court for holding an inquiry as
contemplated u/r.3(2) of O.XLIV.
Allowing the appeal, the Court
HELD: 1. In view of the scheme of Orders XXXIII and
F XLIV CPC and the facts of the present case, the case of the
appellant (plaintiff) falls in Order XXXIII Rule 11 read with Order
XLIV Rule 3(2) CPC. [Para 28][80-F]
2. Though the appellant (plaintiff) was not allowed by the
Trial Court/High Court in the earlier round of litigation to institute
G a suit as an indigent person under Order XXXIII Rule 1 of CPC,
yet he was entitled to file an application/appeal under Order XLIV
Rule 1 of CPC and seek permission from the Appellate Court to
allow him to file an appeal as an indigent person. [Para 29][80-G]

H
74
SUSHIL THOMAS ABRAHAM v. M/S. SKYLINE BUILD. THR. 75
ITS PARTNER

3. Dismissal of application made under Order XXXIII Rule 1 A
of CPC by the Trial Court in the earlier round of litigation is not
a bar against the plaintiff to file an application/appeal under Order
XLIV Rule 1 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
B
Order XLIV, 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. [Para 30][80-H; 81-A-B]
4. Once the plaintiff files an appeal under Order XLIV, his
case is governed by the provisions of Order XLIV. The applicant C
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. This is subject to
applicant filing an affidavit as required under Order XLIV D
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 appealed from is
mandatory at the appellate stage as contemplated under Order
XLIV Rule 3(1). [Paras 31, 32][81-C-D] E

5. Clause (2) of Order XLIV Rule 3 of CPC, 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 F
prosecute the appeal as an indigent person. In such case also, an
inquiry is required to be held to decide his status. [Para 33][81-
E]
6. The High Court did not hold any inquiry as contemplated
under Order XLIV Rule 3(2) of the Code and dismissed the G
appellant’s application made under Order XLIV Rule 1 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/ H
76 SUPREME COURT REPORTS [2019] 1 S.C.R.

A appeal under Order XLIV Rule 1 as an indigent person in appeal.
This reasoning of the High Court is not in conformity with the
Order XXXIII read with Order XLIV and hence cannot be upheld.
[Para 34][81-F-H]
7. The case is remanded to the Appellate Court for holding
B an inquiry as contemplated under Order XLIV Rule 3 (2) of CPC
or by the Trial Court, if directed by the Appellate Court to the
concerned Trial Court to do so and depending upon the case
made out by the applicant/appellant in the inquiry, the Appellate
Court will pass appropriate orders accordingly. [Para 35][82-A-
B]
C
8. 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 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
D 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 XXXIII CPC. [Para 38] [ 8 2 -
D-E]
E CIVIL APPELLATE JURISDICTION: Civil Appeal No. 117 of
2019.
From the Judgment and Order dated 10.03.2014 of the High
Court of Kerala at Ernakulam in CMC (P) No. 78 of 2011 in R.F.A. No.
of 2011
F
C. N. Sreekumar, Prakash Ranjan Nayak, Amit Sharma,
Ms. Malavika B. Pillai, Advs. for the Appellant.
Anil Kaushik, Abhishek Mishra, Akash Bhardwaj, Ms. Shilpa
Singh, Advs. for the Respondents.
G The Judgment of the Court was delivered by
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 Bench of
H the High Court dismissed the CMC petition filed by the appellant herein.
SUSHIL THOMAS ABRAHAM v. M/S. SKYLINE BUILD. THR. 77
ITS PARTNER [ABHAY MANOHAR SAPRE, J.]

3. The facts of the case lie in a narrow compass as would be A
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 B
Court of 1st Additional Sub-Judge, 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 him C
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”. D
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 E
Rule 1 Explanation I (a) & (b) of the Code for filing a suit under Order
33 of the Code.
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 F
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
G
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.

H
78 SUPREME COURT REPORTS [2019] 1 S.C.R.

A 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.
B
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
C pay the ad valorem court fees on the memorandum of appeal.
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.
D
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
E 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 Section 96 of the Code against the decree
of the trial court on payment of ad valorem court fees on the
F 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.
G
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”.

H
SUSHIL THOMAS ABRAHAM v. M/S. SKYLINE BUILD. THR. 79
ITS PARTNER [ABHAY MANOHAR SAPRE, J.]

17. Heard Mr. C.N. Sreekumar, learned counsel for the appellant A
and Mr. Anil Kaushik, learned counsel for the respondents.
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. B
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. C
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 by
holding an inquiry as prescribed under Rules 4 to 7 of Order 33 of the
Code by the trial court. D
21. While examining this question, the Court cannot take into
consideration the two properties. First-the 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 E
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 F
property has to be taken into consideration 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
G
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.
H
80 SUPREME COURT REPORTS [2019] 1 S.C.R.

A 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.
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
B 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
C 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 indigent person or not shall be held by the Appellate
Court or Officer of the Court.
D
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
E 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
F (plaintiff) falls in Order 33 Rule 11 read with Order 44 Rule 3(2) of the
Code.
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
G 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
H
SUSHIL THOMAS ABRAHAM v. M/S. SKYLINE BUILD. THR. 81
ITS PARTNER [ABHAY MANOHAR SAPRE, J.]

not a bar against the plaintiff to file an application/appeal under Order 44 A
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 into the question at the
appellate stage as to whether the applicant is an indigent person or not
B
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 C
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 D
since the date of decree 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 E
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 F
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 declined permission to institute the
suit as an indigent person by the Trial Court in the earlier round and G
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.
H
82 SUPREME COURT REPORTS [2019] 1 S.C.R.

A 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
depending upon the case made out by the applicant/appellant in the inquiry,
B
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
C 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.
D 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 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
E 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.

Kalpana K. Tripathy Appeal allowed.
F

G

H