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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