For Appellant:- T. Krishnanunni, S.A. Saju, T. Sivadasan, K.C. Kurian Meena A.
O R D E R
V. Ramkumar, J.
1. In this petition filed under
Order XLIV Rule 3 (1) read with Section 151 C.P.C.
the petitioner seeks
permission to file the proposed first appeal as an
Indigent Person.
2. The Registry noted a defect to
the effect that the petition as well as the proposed appeal should be presented
by the party-in-person and not by the Advocate. To the said defect the Advocate
appearing for the petitioner submitted a reply contending inter alia as
follows:-
The petitioner who was the
plaintiff in the court below was permitted to file the suit as an indigent
person. Since the petitioner has not ceased to be an indigent person even after
the date of the decree appealed from and also since the petitioner has filed an
affidavit to that effect as envisaged by Rule 3 (1) of Order XLIV C.P.C. no
further enquiry in respect of the question as to whether or not the petitioner
is an indigent person is necessary in view of Rule 3 (1) above.
3. Thereupon the matter was
referred by the Registry to the Bench for judicial consideration of the above
defect.
4. Re-iterating the above stand,
Advocate Sri. T.Sivadasan appearing for the petitioner made the following
submissions before us:-
The petitioner who is the
proposed appellant was the plaintiff in the suit filed before the Court below.
She was permitted to institute the suit as an indigent person by the court
below. She has filed an affidavit in terms Order XLIV Rule 3 C.P.C. The said
affidavit has to be treated with all solemnity which the law attributes to the
same. If so, by virtue of the provision in Order XLIV Rule 3 C.P.C. no further
enquiry in respect of the question as to whether the petitioner is an indigent
person is necessary. It is only in cases where an enquiry is contemplated, need
the applicant engage an authorised agent other than an Advocate. Here, no
enquiry into the indigence of the petitioner is necessary. The petitioner can,
therefore, present the indigent appeal through her Advocate. The view taken in
Moideenkoya Vs. Sarojini, ILR 2002 (1) Ker. 166 by a Division Bench of this
Court to the effect that an Advocate cannot be an authorised agent within the
meaning of Order XXXIII Rule 3 C.P.C. for presenting an indigent appeal on
behalf of his client, requires re-consideration. The need for engaging an agent
who is competent to answer the questions that may be put to him regarding the
indigence of the applicant will arise only when an enquiry regarding the
indigence of the applicant is necessary. In a case, as the present, where the
said enquiry is statutorily dispensed with, the presentation of the indigent
appeal can as well be by the Advocate on behalf of the applicant.
5. We are afraid that we find
ourselves unable to agree with the above submissions.
Rule 1 of Order XLIV C.P.C. reads
as follows:-
"1. Who may appeal (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 provisions are applicable ".
The above provision only enables
a person entitled to prefer an appeal and who is unable to pay the requisite
court fee to present an application seeking permission to appeal as an indigent
person. With regard to all other procedural aspects regarding such application
for permission the provisions relating to suits are made applicable. The provisions
relating to suits are contained in Order XXXIII C.P.C.
The provisions in Order
XXXIII so far as they are relevant here are as follows:-
"1-A, Inquiry, into the
means of an indigent person :-
Every inquiry into the question whether or not a
person is an indigent person shall be made, in the first instance, by the chief
ministerial officer of the Court, unless the Court otherwise directs, and the
Court may adopt the report of such officer as its own finding or may itself
make an inquiry into the question ".
2. Contents of application:-
Every application for permission to sue as an indigent person shall contain the
particulars required in regard to plaints in suits; a schedule of any movable
or immovable property belonging to the applicant with the estimated value
thereof, shall be annexed thereto, and it shall be signed and verified in the
manner presented for the signing and verification of pleadings.
3. Presentation of application:-
Notwithstanding anything contained in these rules, the application shall be
presented to the Court by the applicant in person, unless he is exempted from
appearing in Court, in which case the application may be presented by an
authorised agent who can answer all material questions relating the
application, and who may be examined in the same manner as the party
represented by him might have been examined had such party attended in person;
Provided that, where there are
more plaintiffs than one, it shall be sufficient if the application is
presented by one of the plaintiffs.
4. Examination of applicant
(1)
Where the application is in proper form and duly presented, the Court may, if
it thinks fit, examine the applicant, or his agent, when the applicant is
allowed to appear by agent regarding the merits of the claim and the property
of the applicant.
2) If presented by agent, Court
may order applicant to be examined by commission:- Where the application is
presented by any agent, the Court may, if it thinks fit, order that the
applicant be examined by a commission in the manner in which the examination of
an absent witness may be taken.
5. Rejection of application:-
The
Court shall reject an application for permission to sue as an indigent person.
a) where it is not framed and
presented in the manner prescribed by rules 2 and 3 or
b) where the applicant is not an
indigent person or
c) where he has, within two
months next before the presentation of the application, disposed of any
property fraudulently or in order to be able to apply for permission to sue as
an indigent person.
Provided that no application
shall be rejected if, even after the value of the property disposed of by the
applicant is taken into account, the applicant would be entitled to sue as an
indigent person; or
d) where his allegations do not
show a cause of action, or
e) where he has entered into any
agreement with reference to the subject-matter of the proposed under which any
other person has obtained an interest in such subject matter, or
(f) where the allegations made by
the applicant in the application show that the suit would be barred by any law
for the time being in force, or
g) where any other person has
entered into an agreement with him to finance the litigation".
The Scheme of Order XXXIII C.P.C.
will show that a person who is desirous of instituting a suit in forma pauperis
has to present the application in person as provided under Rule 3 thereof. By
virtue of Rule 1 of Order XLIV C.P.C. the above provision is applicable in the
case of an appeal by an indigent person also. In view of Rule 3 of Order XXXIII
C.P.C. read with Rule 1 of Order XLIV the application for permission to appeal
as an indigent person also should be presented to the Court by the applicant in
person unless he is exempted from appearing in Court. Sections 132 and 133 of
C.P.C. contain exemption for certain category of women and other dignitaries
from personal appearance in Courts. In the case of such persons the application
for permission to sue as an indigent person can be presented by an authorised
agent who can answer all material questions relating to the application. Such
an authorised person is also liable to be examined in the same manner as the
applicant himself. An Advocate cannot be such anauthorised person for obvious
reasons. By virtue of Rule 1 A of Order XXXIII the enquiry into the means of
the applicant has to be made in the first instance by the Chief Ministerial
Officer of the Court. It is open to the Court to adopt the report of such Chief
Ministerial officer as its own finding or to conduct an enquiry by itself by
examining the applicant or his agent, as the case may be, under Rule 4 of Order
XXXIII.
6. We now proceed to consider the
Impact of Rule III of Order XLIV C.P.C.
The said Rule reads as follows:-
"3. Inquiry as to whether
applicant is an indigent person:-
(1) Where an applicant, referred to in rule
1, was allowed to sue or appeal as an indigent person in the Court from whose
decree the appeal is preferred, no further inquiry in respect of the question
whether or not he is an indigent person shall be necessary if the applicant has
made an affidavit stating that he has not ceased to be an indigent persons
since the date of the decree appealed from; but if the Government Pleader or
the respondent disputes the truth of the statement made in such affidavit, an
inquiry into the question aforesaid shall be held by the Appellant Court, or,
under the orders of the Appellate Court, by an officer of that Court.
(2) Where the applicant, referred
to in rule 1, 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".
Thus, Rule 3 of Order XLIV C.P.C.
does not automatically dispense with an enquiry regarding the indigence of a
proposed appellant the moment he files an affidavit to the effect that he was
permitted by the Court below to sue or appeal as an indigent person and he has
not ceased to be an indigent person since the date of the decree appealed from.
In a case where such an affidavit is filed, the appellate Court may order that
no further enquiry regarding the indigence of the applicant is necessary.
Instead, it is open to the appellate Court to order that notwithstanding such
affidavit an enquiry is felt necessary. Even under Rule 3 of Order XLIV C.P.C.
if the Government Pleader or the respondent disputes the truth of the averments
in the affidavit, an enquiry is mandatory. But the presentation of the petitioner,
both under Rule 3 of Order XXXIII and under Rule 1 of Order XLIV C.P.C, is to
take place before the enquiry regarding the indigence of the applicant is
conducted. At the time when the application to sue as an indigent person or
application to appeal as an indigent person is filed, it is not possible either
for the applicant or for the Chief Ministerial Officer of the Court or even the
Court to predict that it may not be necessary to conduct an enquiry regarding
the indigence of the applicant. Hence, it is not permissible for the proposed
appellant while presenting the application to appeal as an indigent person to
anticipate that in view of the affidavit filed by him conforming to Rule 3 of
Order XVIV C.P.C., an enqiry into his indigence will be dispensed with. If so,
the presentation of the application to appeal as an indigent person has to be
in person and not through an Advocate. In this view of the matter, we are not
inclined to accept the submission made on behalf of the applicant that the
presentation of the application can be by the applicants' Advocate.
Nor are we persuaded to
reconsider Moideenkoya's Case. The application has to be presented by the
applicant himself or herself in person. The applicant here has no case that she
is exempted from appearing in Court. Even if she is so exempted, the authorised
agent whom the law allows to present the application cannot be an Advocate but
a person who can answer all material questions relating the application. We,
therefore, uphold the objection raised by the Registry. The petitioner is given
two weeks' time to present the application in person.
