Dismissal of application to file a suit as an indigent person is not a bar against filing an appeal as an indigent person.

The Supreme Court of India held in a judgment that if an application of the person to file a suit as an indigent person under Order 33 of the Code of Civil Procedure 1908 (hereinafter referred to as a “Code”) is rejected, the same will not bar the said person to file an application/ appeal under Order 44 Rule 1 of the Code and seek permission from the Appellant court to allow him to file an appeal as an indigent person.

The decision was delivered by the Apex High Court in the matter of Sushil Thomas Abraham Vs. M/s Skyline Build. Thr. Its Partner & Ors., Civil AppeL No. 117 of 2019 decided on 07.01.2019.

Challenge:

The only limited issue for adjudication before the Hon’ble Supreme Court of India was whether the High Court of Karnataka was justified in dismissing the plaintiff’s appeal by rejecting the prayer made by the plaintiff to file an appeal under order 41 Rule 1 of the Code as “indigent person”.

The reasoning given by the High Court was 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, 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.

Held:

By setting aside the reasoning given by High Court, the Apex court held that the question as to whether the plaintiff possessed of sufficient means to pay the requisite court fees as per the provisions of court fees act are to be decided by holding an inquiry as prescribed under Rule 4 to 7 of Order 33 of the Code.

Order 44 of the Code states that where the applicant is already allowed by the Trial court to sue as an indigent person, then in such a circumstance, no further inquiry in respect to the question as to whether he is an indigent person or not is necessary provided such a person files an affidavit stating therein that he has not ceased to be an indigent person since date of decree appealed from.

After examining the scheme of Order 33 and Order 44 of the Code, the Hon’ble Supreme Court of India held that 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 the appellant/ Plaintiff 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.