Saturday 1 June 2024

Supreme Court: Can A Person, Awarded Monetary Compensation, But Has Not Received It, File Appeal As Indigent?

Order XLIV Rule 3(2) provides as under :

“3. Inquiry as to whether applicant is an

indigent person.-(1)……

(2) Where the applicant, referred to in rule

11, is alleged to have become an indigent

person since the date of the decree appealed

from, the inquiry into the question whether

or not he is an indigent person shall be made

by the Appellate Court or, under the orders

of the Appellate Court, by an officer of that

Court unless the Appellate Court considers

it necessary in the circumstances of the case

that the inquiry should be held by the Court

from whose decision the appeal is

preferred.”

The Appellate Court, in accordance with the above,

did not conduct any inquiry. The same was necessitated

since nothing on record speaks of the claimant-appellant

having filed the claim before the learned Tribunal as an

indigent person, in which case she would be covered under

Rule 3(1), which provides that no further inquiry would

be required in respect of a person who was allowed to

sue or appeal as an indigent person if they make an

affidavit to the effect that they have not ceased to be

an indigent unless the Government pleader objects or

disputes such claim in which case an inquiry shall be

held by the Appellate Court or under the orders thereof.

18. On both counts, one, that she had not yet received

the money and, therefore, at the time of filing the

appeal she was arguably indigent; and second, that the

statutory requirement under the C.P.C., as described

above, was not met – the order of the learned Single

Judge has to be set aside. {Para 17}

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2024

ALIFIYA HUSENBHAI KESHARIYA  Vs SIDDIQ ISMAIL SINDHI & ORS. 

SANJAY KAROL J.,

Dated: May 27, 2024.

Citation: 2024 INSC 457.

1. Leave granted.

At the outset, we may remind ourselves of what

Krishna Iyer, J. had observed in State of Haryana v.

Darshana Devi1 that

“2. The poor shall not be priced out of the

Justice market by insistence on court-fee

and refusal to apply the exemptive

provisions of Order 33, CPC.”

2. The sole point for our consideration is whether a

1 (1979) 2 SCC 236

2 | SLP(C)No.729/2020

person who is entitled to receive compensation by way of

a claim before the Motor Accident Claims Tribunal can be

said to have given up its status as an ‘indigent person’,

by virtue of the amount slated to be received. In other

words, whether a person being an award holder, of

monetary compensation without actual receipt thereof,

would be disentitled from filing an appeal seeking

enhanced compensation as an indigent?

3. The factual scenario giving rise to this appeal

is :-

3.1 The appellant, who was the original claimant

before the Motor Accident Claims Tribunal, [Court of

Motor Accident Claims Tribunal (Auxiliary) & 10th

(Adhoc) Addl. District Court Jude, Jamnagar]2 in

M.A.C.P.No.255 of 2011, was injured in an accident

on 4th July 2010, while riding pillion on a bike,

which was hit by a truck. Having sustained injuries,

she was admitted for medical treatment at a hospital

for a period of fourteen days and subsequently she

underwent plastic surgery.

3.2 At the time of the accident, she was earning

2 Hereafter, ‘Tribunal’

3 | SLP(C)No.729/2020

Rs.3,000/- per month, but, post the accident, she

sustained permanent disablement, and hence had not

been able to work thereafter. A claim was filed for

Rs.10 lakhs with 18% interest and costs.

3.3 The Tribunal vide Award dated 17th October 2016,

awarded a sum of Rs.2,41,745/- with 9% interest from

the date of claim petition till the date of

realization and proportionate cost(s).

4. Dissatisfied thereby, the claimant-appellant

approached the High Court of Gujarat by way of Regular

First Appeal No.2611/2017. Misc. Civil Application

No.3/2018 was filed therein by which the claimantappellant

prayed for permission to file the said First

Appeal as an indigent person.

5. The High Court vide judgment and order dated 7th

August, 2018 dismissed the Misc. Civil Application

observing as under :

“….3. It is a matter of record that the

claimants filed claim petition before the

Tribunal and claimed Rs.10,00,000/-, whereby

the Tribunal by partly allowing the claim

petition vide the impugned award, awarded a

sum of Rs,2,41,745/- along with 9% interest

from the date of claim petition till its

realization.

4. In light of the aforesaid, the applicant–

appellant cannot be considered to be

indigent person and therefore, he has to pay

court fees first.

5. Ms. Rana, learned counsel for the

applicant, however, submits that, till date,

no amount is received by the applicant. It

is open for the applicant to pursue the said

remedy before appropriate forum.

In view of the above, present application

is not entertained. Time to deposit Court

fees is granted for 8 weeks from today.”

(Emphasis supplied)

6. We may refer to this Court’s decision in Mathai M.

Paikeday v. C.K. Antony3, wherein the concept of an

indigent person has been discussed at length. Relevant

extracts are reproduced as follows:-

“16. The concept of indigent person has been

discussed in Corpus Juris Secundum (20 CJS

Costs § 93) as following:

“§ 93. What constitutes indigency.—The right

to sue in forma pauperis is restricted to

indigent persons. A person may proceed as

poor person only after a court is satisfied

that he or she is unable to prosecute the

suit and pay the costs and expenses. A person

is indigent if the payment of fees would

deprive one of basic living expenses, or if

the person is in a state of impoverishment

that substantially and effectively impairs

or prevents the pursuit of a court remedy.

However, a person need not be destitute.

Factors considered when determining if a

litigant is indigent are similar to those

considered in criminal cases, and include

the party's employment status and income,

including income from government sources

such as social security and unemployment

benefits, the ownership of unencumbered

assets, including real or personal property

and money on deposit, the party's total

indebtedness, and any financial assistance

3 (2011) 13 SCC 174


received from family or close friends. Not

only personal liquid assets, but also

alternative sources of money should be

considered.”

17. The eligibility of person to sue in forma

pauperis has been considered in American

Jurisprudence (20 Am Jur 2d Costs § 100) as thus:

Ҥ 100. Eligibility to sue in forma

pauperis; generally.—The burden of

establishing indigency is on the defendant

claiming indigent status, who must

demonstrate not that he or she is entirely

destitute and without funds, but that

payments for counsel would place an undue

hardship on his or her ability to provide

the basic necessities of life for himself or

herself and his or her family. Factors

particularly relevant to the determination

of whether a party to a civil proceeding is

indigent are: (1) the party's employment

status and income, including income from

government sources such as social security

and unemployment benefits; (2) the ownership

of any unencumbered assets, including real

or personal property and monies on deposit;

and finally (3) the party's total

indebtedness and any financial assistance

received from family or close friends. Where

two people are living together and

functioning as a single economic unit,

whether married, related, or otherwise,

consideration of their combined financial

assets may be warranted for the purposes of

determining a party's indigency status in a

civil proceeding.”

7. The Code of Civil Procedure, 19084 provides for

mechanism by which a person who is indigent may file a

suit or an appeal. Order XXXIII thereof pertains to

filing of suits and Order XLIV deals with appeals by

4 Hereinafter C.P.C.


such persons.

8. In the present matter, we are concerned with an

appeal envisaged under Section 173 of the Motor Vehicle

Act, 19885.

9. Rule 1 of Order XLIV dealing with appeal filed as

an indigent person, reads as under :

“1. Who may appeal 3[as an indigent person.

— Any person entitled to prefer an appeal,

who is unable to pay the fee required for

the memorandum of appeal, may present an

application accompanied by a memorandum of

appeal, and may be allowed to appeal as an

indigent person, subject, in all matters,

including the presentation of such

application, to the provisions relating to

suits by indigent persons, in so far as those

provisions are applicable.”

10. The operation of the above two provisions has been

noted by this Court in R.V. Dev v. Chief Secretary, Govt.

of Kerala6, in para 8 whereof it was observed :

“8……When an application is filed by a person

said to be indigent, certain factors for

considering as to whether he is so within

the meaning of the said provision are

required to be taken into consideration

therefor. A person who is permitted to sue

as an indigent person is liable to pay the

court fees which would have been paid by him

if he was not permitted to sue in that

capacity, if he fails in the suit at the

trial or without trial. Payment of court

fees as the scheme suggests is merely

deferred. It is not altogether wiped off.”

5 Hereinafter the ‘MV Act’

6 (2007) 5 SCC 698

7 | SLP(C)No.729/2020

(Emphasis supplied)

In regard to the application of Order XXXIII of the

Code, a perusal of the decision in Union Bank of India

v. Khader International Construction & Ors.7 reveals the

following principles :

(i) It is an enabling provision for filing of a

suit by an indigent person without paying the

court fee at the initial stage.

(ii) If the suit is decreed for the plaintiff, the

court fee would be calculated as if the

plaintiff had not originally filed the suit

as an indigent person. The said amount is

recoverable by the State in accordance with

who may ordered to pay the same in the

decree.

(iii) Even when a suit is dismissed, the court fee shall

be recoverable by the State in the form of first

charge on the subject-matter of the suit.

It was further held that –

“20…So there is only a provision for the

deferred payment of the court fees and this

benevolent provision is intended to help the

poor litigants who are unable to pay the

requisite court fee to file a suit because

of their poverty.”

7 (2001) 5 SCC 22

8 | SLP(C)No.729/2020

11. The intent of Orders XXXIII and XLIV is

unmistakable. They exemplify the cherished principle

that lack of monetary capability does not preclude a

person from knocking on the doors of the Court to seek

vindication of his rights.

12. It is unquestioned that a person dissatisfied with

the amount of compensation received can file an appeal.

In the present case, for a claim of Rs.10 lakhs, the

Tribunal awarded compensation which was less than Rs.2.5

lakhs. Without commenting on the merits of the matter,

we recognize the desire of the claimant-appellant to

file an appeal.

13. Once again turning to Darshana Devi (supra), we

refer to certain observations made therein -

“5……Our perspective is best projected by

Cappelletti, quoted by the Australian Law

Reform Commission:

“The right of effective access to

justice has emerged with the new social

rights. Indeed, it is of paramount

importance among these new rights since,

clearly, the enjoyment of traditional as

well as new social rights presupposes

mechanisms for their effective protection.

Such protection, moreover, is best assured

by a workable remedy within the framework of

the judicial system. Effective access to

justice can thus be seen as the most basic

requirement — the most ‘basic human right’ —

of a system which purports to guarantee legal

9 | SLP(C)No.729/2020

right.” [ M. Cappelletti, Rabels, (1976) 669

at 672]

We should expand the jurisprudence of

access to justice as an integral part of

Social Justice and examine the

constitutionalism of court-fee levy as a

facet of human rights highlighted in our

Nation's Constitution. If the State itself

should travesty this basic principle, in the

teeth of Articles 14 and 39-A, where an

indigent widow is involved, a second look at

its policy is overdue. The Court must give

the benefit of doubt against levy of a price

to enter the temple of justice until one day

the whole issue of the validity of profitmaking

through sale of civil justice,

disguised as court-fee, is fully reviewed by

this Court…”

14. In the present case although the State is not the

one in appeal, the observations in regard to the

insistence upon court fees by the High Court to be taken

from the meager amount awarded as compensation even

after having recorded that she had not yet received the

said amount, has prompted us to refer to the above

extract.

15. The ground, upon which the claimant-appellant’s

application to file the appeal as an indigent person was

rejected, was that she had received compensation by way

of the Award of the Tribunal, and therefore, she was not

indigent. We find this observation to be belied by the

impugned order itself as the learned Single Judge has

10 | SLP(C)No.729/2020

recorded the submission of the counsel for the claimantappellant

that no money stood paid to her at that point

in time. So even though she had been awarded a sum, her

indigency was not extinguished thereby. Any which way,

in our considered view, the High Court was incorrect in

rejecting the Misc. Application.

16. There is a further ground on which we find that the

High Court erred in not allowing the claimant-appellant

to file the appeal. The language used in Orders XXXIII

and XLIV so far as deferring of payment of court fees is

concerned, as was observed in Khader International

(supra), that if the suit so filed, as an indigent person

succeeds, the Court fee shall be deductible from the

amount received as a result thereof as if the person who

files the suit is not an indigent.

17. Order XLIV Rule 3(2) provides as under :

“3. Inquiry as to whether applicant is an

indigent person.-(1)……

(2) Where the applicant, referred to in rule

11, is alleged to have become an indigent

person since the date of the decree appealed

from, the inquiry into the question whether

or not he is an indigent person shall be made

by the Appellate Court or, under the orders

of the Appellate Court, by an officer of that

Court unless the Appellate Court considers

it necessary in the circumstances of the case

that the inquiry should be held by the Court

from whose decision the appeal is

preferred.”

The Appellate Court, in accordance with the above,

did not conduct any inquiry. The same was necessitated

since nothing on record speaks of the claimant-appellant

having filed the claim before the learned Tribunal as an

indigent person, in which case she would be covered under

Rule 3(1), which provides that no further inquiry would

be required in respect of a person who was allowed to

sue or appeal as an indigent person if they make an

affidavit to the effect that they have not ceased to be

an indigent unless the Government pleader objects or

disputes such claim in which case an inquiry shall be

held by the Appellate Court or under the orders thereof.

18. On both counts, one, that she had not yet received

the money and, therefore, at the time of filing the

appeal she was arguably indigent; and second, that the

statutory requirement under the C.P.C., as described

above, was not met – the order of the learned Single

Judge has to be set aside.

19. Having observed as above, we allow the appeal and

set aside the impugned judgment and order dated 7th

August, 2018 of the learned Single Judge passed in Misc.

Civil Application No.3/2018 in Regular First Appeal


No.2611/2017. It would have been ideal for us to have

remanded the matter to the High Court for an inquiry to

be conducted by its orders in accordance with Order XLIV,

however, in the peculiar facts and circumstances of this

case, keeping in view that considerable time has passed

since the impugned order in the First Appeal, we grant

liberty to the appellant to appeal as an indigent person

observing that, at the relevant time, her application

ought to have been looked into, verified and then ordered

upon, which was not done.

20. While recognizing that in ordinary circumstances

this Court should not impose timelines for disposal of

cases, but considering the facts of this case, in

particular, that the Award of the Tribunal is dated 17th

October, 2016, and the rejection of Misc. Civil

Application seeking permission to file the appeal as an

indigent person before the High Court, is dated 7th

August, 2018, we request the High Court that the appeal

filed by the claimant-appellant be decided

expeditiously, and preferably within a period of six

months from the date of receipt of the copy of this

judgment. We direct the Registry to immediately

transmit the same to the learned Registrar General of

the High Court of Gujarat for necessary follow-up

action.

Pending application(s), if any, shall stand disposed

of.

…………………………………………J.

[J.K. MAHESHWARI]

…………………………………………J.

[SANJAY KAROL]

New Delhi;

May 27, 2024.

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