SUSHIL THOMAS ABRAHAM versus M/S. SKYLINE BUILD. THR. ITS PARTNER & ORS.

Citation: [2019] 1 S.C.R. 74 · Decided: 07-01-2019 · Supreme Court of India · Bench: ABHAY MANOHAR SAPRE · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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SUPREME COURT REPORTS
[2019] 1 S.C.R.
SUSHIL THOMAS ABRAHAM
v.
M/S. SKYLINE BUILD. THR. ITS PARTNER & ORS.
(Civil Appeal No. 117 of  2019)
JANUARY 07, 2019
[ABHAY MANOHAR SAPRE AND INDU MALHOTRA, JJ.]
Code of Civil Procedure, 1908:
O. XXXIII, r.11 r/w O.XLIV, r.3(2) – Suit u/O. XXXIII r.1 seeking
permission to institute suit as an indigent person – Permission refused
– Thereafter suit dismissed – Plaintiff filed appeal before High Court
u/O.XLIV, r.1 again seeking permission to file the appeal as an
indigent person – High Court declined the permission on the ground
that he was not allowed to institute the suit u/O. XXXIII, r.1 as an
indigent person – On appeal, held: Dismissal of application made
u/O. XXXIII, r.1 by the trial court in earlier round of litigation is not
a bar against the plaintiff to file an application/appeal u/O.XLIV,
r.1 – Rules 3(1) and 3(2) of O.XLIV contemplate holding of inquiry
again into the question at the appellate stage as to the status of the
appellant as indigent person since the date of the decree, which
has been appealed from – High Court did not hold such inquiry –
Case is remanded to appellate court for holding an inquiry as
contemplated u/r.3(2) of O.XLIV.
Allowing the appeal, the Court
HELD: 1. In view of the scheme of Orders XXXIII and
XLIV CPC and the facts of the present  case, the case of the
appellant (plaintiff) falls in Order XXXIII Rule 11 read with Order
XLIV Rule 3(2) CPC. [Para 28][80-F]
2. 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 XXXIII Rule 1 of CPC,
yet he was entitled to file an application/appeal under Order XLIV
Rule 1 of CPC and seek permission from the Appellate Court to
allow him to file an appeal as an indigent person. [Para 29][80-G]
[2019] 1 S.C.R. 74
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3. Dismissal of application made under Order XXXIII Rule 1
of CPC by the Trial Court in the earlier round of litigation is not
a bar against the plaintiff to file an application/appeal under Order
XLIV Rule 1 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 XLIV, 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. [Para 30][80-H; 81-A-B]
4. Once the plaintiff files an appeal under Order XLIV, his
case is governed by the provisions of Order XLIV. 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. This is subject to
applicant filing an affidavit as required under Order XLIV
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
XLIV Rule 3(1). [Paras 31, 32][81-C-D]
5. Clause (2) of Order XLIV Rule 3 of CPC, 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. [Para 33][81-
E]
6. The High Court did not hold any inquiry as contemplated
under Order XLIV Rule 3(2) of the Code and dismissed the
appellant’s application made under Order XLIV Rule 1 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  and such rejection having been upheld by the
High Court in appeal, he cannot be permitted to file an application/
SUSHIL THOMAS ABRAHAM v. M/S. SKYLINE BUILD. THR.
ITS PARTNER
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SUPREME COURT REPORTS
[2019] 1 S.C.R.
appeal under Order XLIV Rule 1 as an indigent person in appeal.
This reasoning of the High Court is not in conformity with the
Order XXXIII read with Order
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