Prabhat vs Santosh Kumari and Others

N.N. Mithal, J.—On rejection of an application for permission to file an appeal in the court below as an indigent person the present F. A. F. O. has been filed.

The Plaintiff had filed a suit and was permitted to sue as an indigent person by the trial court. After the dismissal of the suit, he preferred an appeal. Along with the memo of appeal he also made an application for permission to file the appeal as an indigent person as he was not in possession of sufficient means to pay the court fee on the memorandum of appeal. He also mentioned that he had been declared pauper by the trial court. He prayed that he may be permitted to proceed with the appeal as an indigent person, an affidavit accompanying this application disclosing that the Appellant did not possess any property except the necessary wearing apparel and household goods so as to be able to pay the court fee. He did not file any affidavit as required under Order 44 Rule 2 CPC stating that he had been declared as indigent person by the court below and that he had not, since that date, acquired any other moveable or Immovable properly. Such an affidavit was, however, filed by him later on when the application under Order 44 Rule 1 CPC was to be disposed of.

A preliminary objection about the maintainability of the appeal has been taken by the Respondent. According to him Order 43 does not provide for an appeal against an order refusing to permit the filing of an appeal as an indigent person under Order 44 Rule 1 Code of Civil Procedure. According to him under Order 43 Rule 1 (a) of the Code only an appeal against an order passed under the provisions of Order 33 Rules 5 and 7 rejecting an application for permission to sue as an indigent person is maintainable. However, right of appeal is a creation of the statute and cannot be inferred in view of Sections 104 and 105 Code of Civil Procedure. He contended that the appeal does not lie. I cannot agree to this.

A perusal of Section 104 CPC shows that it is couched in a positive form and enables a party to file an appeal against orders specified therein. The language of Section 105 CPC however, is restrictive in nature and forbids an appeal form those orders from which an appeal is not specifically provided for. These orders can only be challenged in an appeal against the decree itself. When read together their commulative effect is that the appeals lie only form those orders which are specifically provided for in Section 104 or Order 43 of the Code. Order 43 only provides for an appeal against an order passed under Order 33 Rules 5 & 10 and none under Order 44 of the Code. On the strength of this it was urged that apart from Section 104 of the Code and Order 43 Rule 1 CPC there is no other provision under which an appeal could lie and, therefore, the present appeal was not legally competent. The argument, though very attractive at first sight, loses much of its lustre if we closley examine the provisions of Order 44 Rule 1 which is in the following language:

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 person, in so far as those provisions are applicable.

This rule, therefore, necessarily invokes the aid of Order 33 in its application to appeals subject only to suitable changes when applied to appeals. Rule 1 of Order XXXIII defines an indigent person while Rule 5 gives out the grounds on which such an application can be rejected. One of such grounds is that the person concerned was not indigent. This has to be determined in the light of Rule 1 after examining the documents before it as is done in the case of suits filed by an indigen person under Order 33 CPC with the only difference that there would be no fresh enquiry into the indigency if he had already been held to be an indigent person in the trial court. When an application is filed by an indigent person the court has to examine the same to see if the Appellant was an indigent person in the same manner as it would have proceeded to do when a Plaintiff files a suit as an indigent person. The court on a perusal of the documents and after examining the applicant, if necessary, could either reject the application under Rule 5 of Order XXXIII of the Code at the preliminary stage or under Rule 10, after hearing the opposite party also. Under both these circumstances the order rejecting the application would be appealable under Order 43 Rule (1)(na)(?).

What has appended in the present case is that while filing the memorandum of appeal, an application for permission to file the appeal as an indigent person was also made which was supported by an affidavit. It was stated therein that he was an indigent person and was not possessed of means to pay the court fee. On a consideration of this application the court found that the application was defective and rejected the same. As Order 44 Rule 1 imports the provisions of Order 33 for the purposes of an appeal by an indigent person, the order of rejection could only be either under Rule 5 or 10 of Order 33. There can no difference in the nature of orders passed under Rule 5 while rejecting the plaint under Order 33 or those passed on an application under Order 44 Rule 1 Code of Civil Procedure. Substantially and in essence in either event nature of proceedings is the same and therefore the nature of the orders passed on it must also be the same.

Learned Counsel for the Respondent has relied upon Mahboob Hasan Khan v. Syed Hasan 1961 All 527 where a learned single Judge of this Court, dealing with rejection of an application for setting aside the abatement of appeal, observed that the provisions of Rule 11 of Order 72, which make the provisions applicable in appeals also by substituting the word ''suit'' by the word ''appeal'' cannot be extended in their application to an order refusing to set aside abatement of an appeal. Therefore, on the same analogy he urged that no appeal would lie in the present case also as there is no specific provision for such appeal in Order 43 of the Code. This case was, however, considered by a Division Bench of this Court in Govind Singh v. Lal Bent Pd. 1969 AWR 346 and ratio of decision in 1961 All 527 (Supra) was not accepted. The Bench agreed with the following observations made by Hon. King, J. in Raju Mudal v. Chinna Raja Naidu 1941 Mad 51 "It is argued in support of the preliminary objection that the use of the word ''suit'' in colum (K.) must necessarily exclude the word ''appeal''. I am unable to accept that argument. It seems to me that the expression ''refusing'' to set aside the abatement or dismissal of a suit'' is merely a compendious way of referring to the provisions of Rule 9. As Rule 9 is applicable to appeals, it would, be contrary to all rules or logical interpretation, it seems to me, if the words ''suit'' in Clause (K) of Order 43 Rule 1 is to bear a different meaning to what it bears in Order 22, Rule 9. I accordingly overrule the preliminary objection and hold that this appeal does lie."

To hold otherwise would lead to an anomolous situation; while an appeal shall lie from an order refusing permission to a Plaintiff to sue as an indigent person, yet in appeal if such a permission is refused, there would be no remedy. In fact the very applicability of all the provisions of Order 33 to an appeal by an indigent-Appellant makes such a order as one passed under Rule 5 of Order 33 Code of Civil Procedure, and will, as such, be applicable. The view that 1 am taking will also be more logical and in consonance with the principles of judicial interpretation. In my opinion, therefore, an appeal would lie from an order passed under Order 41 Rule 1 CPC refusing to grant permission to the Appellant to file an appeal as an indigent person. The preliminary objection, therefore, cannot be sustained and is hereby rejected.

On merits also 1 find considerable force in this appeal. The court below has rejected the application on the grounds that (1) the grounds mentioned in the memorandum of appeal have not been given in the application, (2) there is no schedule of properties annexed to it; and lastly the affidavit filed was patently wrong because the applicant belonged to armed forces and must have been earning a monthly salary which has not been disclosed as a means of the applicant.

The first ground, though technically it may seem to be correct, yet the expression ''inso far as those provisions are applicable to appeals'' used in Order 44 Rule 1 CPC suggests that in appeals by indigent persons some variations in form can take place. For example, a plaint is required to be signed and verified but the memo of appeal does not require verification under Order 41 Code of Civil Procedure. Therefore, the memo of appeal filed by an indigent person ordinarily would not require any verification though the plaint would need such verification. It is now well recognised that it is not essential to draft the application for permission to sue as an indigent person exactly like a plaint. If the application, complete in other respects, is accompanied by the plaint which is duly signed and verified, it would be sufficient compliance of the provisions of Order 33. Why can we not extend the same principles in the case of appeal also? If the meno of appeal is proper in all respects in accordance with Order 41 and is accompanied by an application for permission to file the appeal as an indigent person there should not be any difficulty in holding that such an application was proper one and complies with provisions of law. It has been rightly said that procedure is handmaid of justice. Technicalities of procedure, therefore, should not be allowed to interfere with the flow of justice if there has been substantial compliance of the rules of procedure otherwise.

In this case the Appellant moved the application for permission to appeal as an indigent person and it was supported by an affidavit that he was not possessed of any assets, except articles of daily use, to enable him to pay the court fee. In that application he had stated that he was unable to pay the court fee and that he had been declared an indigent person by the court below also and therefore permission to proceed with the appeal as an indigent person be granted. If the affidavit and the application are taken together they sufficiently comply with the provisions of Order 33. If a person is not possessed by any means and properly, it is quite sufficient for him to allege that he owns no property and has no means to pay the court fee. It would be futile to expect him to annex a schedule of properties with the word ''nil'' written therein. It would be rather too technical to expect any such thing to be done. What is to be seen is whether sufficient compliance of the provisions of Order 33 had been made, and that too not with a view to find faults but only with a view to see whether substantially the rules have been complied with or not. It is true that the form and the manner in which the application had been made was not strictly in accordance with the provision and it would have been far better if a little more care had been taken while drafting the same; yet mere technicality of this nature cannot be allowed to block the way of the court in dispensing justice to the parties. Even where the court finds some minor defect in the form or contents of the application, it would be far useful to allow the party to ''correct the same, rather than to use the harsher course of rejecting the application itself--See AIR 1917 Nagpur 108 and 1921 Allahabad 321.

The court below says in its order that the affidavit of the Appellant was false as he was a member of the armed forces and must have been drawing his salary at least. It appears that courts attention was not drawn to the definition of ''indigent person'' occurring in Order 33 Rule 1 CPC which exempts form consideration all such property as is exempt from attachment in execution of a decree. Section 60(1)(a) and (j) exempts "wearing apparel, cooking vesel" etc. and salary and allowances of those to whom the Army Act applies. These two provisions, therefore, clearly render the salary of an army men exempt from attachment and need not be shown as means of the Appellant. The application for permission to appeal as an indigent person could not, therefore, have been dismissed in these circumstances.

In view of the above the appeal succeeds and is hereby allowed with costs. The order of the court is set aside and the application to file the appeal as an indigent person is allowed and it is further directed that the appeal will now be registered and the court below will proceed to hear the appeal on merits in accordance with law.