Case: SUSHIL THOMAS ABRAHAM Vs. M/S SKYLINE BUILD. THRU. ITS PARTNER

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 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 aliaprovides 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 oftheCodeappliestoappeals. 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 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 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. 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 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 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 appellants 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 roundand 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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.While examining this question, the Court cannot take into. 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 for determining his financial capacity to pay the requisite court fees on his claim in the suit.Similarly, if the person concerned acquires any property afterapplication 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 for deciding the question as to whether he is an indigent person or not.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.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.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.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.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 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 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.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 personThis 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 appealed from is mandatory at the appellate stage as contemplated under Order 44 Rule 3(1).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.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 theapplication 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 roundand 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.