Sunday, 20 October 2019

Whether plaintiff can file application seeking permission to sue as indigent person in appeal if his application was rejected by trial court?

 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.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 117 of 2019 

Decided On: 07.01.2019

 Sushil Thomas Abraham  Vs.   Skyline Build. and Ors.


Hon'ble Judges/Coram:
Abhay Manohar Sapre and Indu Malhotra, JJ.

Citation: 2019(5) MHLJ 545.

Read full judgment here: Click here
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