Dismissal Of Plaintiff's Application To File Suit As Indigent Person Won't Bar Him From Seeking Permission To File Appeal As Indigent Person: SC [Read Judgment]

The Supreme Court has held that dismissal of application filed by a plaintiff under Order 33 Rule 1 of the Code of Civil Procedure (seeking permission to institute the suit as an indigent person) by the trial court in the earlier round of litigation is not a bar against the plaintiff to file an 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.

While rejecting an application seeking permission to file an appeal as an indigent person, the high court, in this case (Sushil Thomas Abraham vs. M/s Skyline Build.) observed that, since the plaintiff's prayer to file a suit as an "indigent person" under Order 33 Rule 1 of the Code was dismissed by the trial court and the same was upheld by the high court in the appeal, the plaintiff is not entitled to file an application/appeal under Order 44 Rule 1 of the Code against the decree of the trial court. This finding was assailed before the apex court.

Referring to various provisions of the Code, the bench comprising of Justice Abhay Manohar Sapre and Justice Indu Malhotra observed: "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."

The bench also found fault with the high court not holding any inquiry as contemplated under Order 44 Rule 3(2) of the Code and dismissing 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.

The court, while allowing the appeal and remanding the matter to the high court, said: "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 will be allowed else dismissed." 

Read the Judgment Here