Sushilabai vs Chairman

Heard. On behalf of appellant, this appeal is preferred u/s 96 of CPC being aggrieved by the judgment dated 12.11.2007 passed by Additional District Judge to the Court of Ist Additional District Judge Shivpuri, in Civil Original Suit No. 28-A/07, whereby her suit filed for damages with respect of electrocution death of his son Rakesh Kumar, has been decreed in part only for the sum of Rs. 1,47,000/- along with interest at the rate of 6% per annum from the date of impugned judgment. In addition to it, the cost of the suit Rs. 500/- has also been awarded and this appeal has been preferred for further enhancement of the sum awarded by the trial Court.

This appeal is listed today for appropriate orders regarding payment of deficit Court fees, but the appellant''s counsel apprises us that subsequent to earlier date, he has filed I.A. No. 3245/13, under Order 47 Rule 1 read with Section 151 of CPC to review and recalling the order dated 29.11.2011 whereby, his I.A. No. 8669/08, filed for permitting the appellant to prosecute this appeal against the above mentioned judgment and decree as indigent person, has been dismissed and to hear the same.

Considering such prayer the same is taken up for consideration.

Heard on I.A. No. 3245/13.

As per averments of this application, initially the appeal was filed on 10.4.2008 along with application for giving exemption from payment of Court fees under the notification of the State of M.P. promulgated by virtue of Section 35 of the Court fees Act whereby, the person of the specified Class having the income below Rs. 6000/- per annum, is exempted from payment of Court fees. But in view of the earlier decision of the Hon''ble Division Bench of this Court, such benefit or exemption is not available to the person of such Class at the stage of Appeal, thus such I.A. was neither entertainable nor could have been allowed by this Court.

Subsequent to filing this appeal, the appellant has filed another I.A. No. 8669/08 on dated 17.6.2008 permitting her to prosecute this appeal as ''indigent person'' and on consideration such I.A. was dismissed holding that the appellant could not be treated an indigent person because she has fund received in compliance of the impugned judgment and decree from the respondents No. 1 & 2.

It is further stated that as per provision of XXXIII Rule 1 of CPC which is applicable under Order XLIV Rule 1 of CPC at the appellate stage also, the subject matter of the impugned suit could not be taken into consideration to decide the question of financial status or the indigence of the person like the present appellant and in such premises, the prayer to review of the order dated 29.11.2011, is made.

Having heard the counsel present. We have carefully gone through the aforesaid I.A., as well as the order dated 29.11.2011, whereby such I.A., has been dismissed. After perusing the same we are of the considered view that the order dated 29.11.2011, requires review for recalling the same because on the following reasons.

Before proceeding further, as a ready reference we would like to reproduce the concerning provision of Order XLIV Rule 1 of CPC and Order XXXIII Rule 1 of CPC:-

Order XLIV Rule 1 of CPC read as under:-

Who may appeal [as an indigent person].-[(1)] 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.

The relevant part of Order XXXIII Rule 1 of CPC read as under:-

Suits may be instituted by indigent person. Subject to the following provision any suit may be instituted by an [indigent person].

(a) If he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject-matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit, or

(b) Where no such fee is prescribed, if he is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree, and the subject-matter of the suit.

In view of the aforesaid provision, on examining the case at hand along with the earlier order dated 29.11.2011, then it is apparent that such order was passed taking into consideration the information of the respondents that in pursuance of the impugned judgment and decree, the appellant had already received the compensation along with interest near about Rs. 2 Lacs and in such premises, she could not be treated to be indigent person and in such premises, her earlier I.A. No. 8669/08, filed for permitting her to prosecute this appeal as indigent person, was dismissed. Mere perusal of Order XLIV Rule 1 of CPC as stated above, it is apparent that all such information which are necessary to file the application to prosecute the suit as indigent person and such requisite information are prescribed under Order XXXIII Rule 1 of CPC. According to Order XXXIII Clause (a) of Rule 1, to get the aforesaid permission to prosecute the suit as indigent person, the person like appellant is bound to prove that she/he is not possessed sufficient means (other than property exempt from attachment in execution of a decree and the subject matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit. In such premises, in any circumstances, on earlier occasion the sum received by the appellant on the basis of the impugned judgment and decree could not have been taken into consideration to decide the question regarding indigence of the appellant, but it is apparent fact from the order dated 29.11.2011 that such application was dismissed only on such count. So, it is apparent error on the face of the record in the order dated 29.11.2011, and the same requires review for recalling it. So, in view of the aforesaid provisions of CPC and the aforesaid existing legal position till the extent of dismissing the I.A. No. 8669/08, the interim order dated 29.11.2011, is hereby recalled. Accordingly, this review petition is allowed.

On allowing the aforesaid I.A. No. 3245/13, the I.A. No. 8669/08, requires fresh consideration hence the same is taken up for hearing.

Having heard the parties, we have carefully gone through such I.A.. It is apparent fact that the same has been preferred not at the initial stage of this appeal on dated 10.4.2008, but after filing the appeal at subsequent stage on dated 17.6.2008.. As per High Court of Madhya Pradesh Rules 2008, the person like appellant if wants to prosecute the appeal as indigent person, then he/she is bound to file the MCC along with appeal memo and the certified copy of the impugned judgment and decree and if there is any delay, then the same should be filed along with an application u/s 5 of the Limitation Act. So, in such premises, at the initial stage this appeal being not preferred as MCC, so Office was not bound to register the same as MCC even it was filed by the appellant itself by appearing in the Registry.

According to our considered view this I.A. being not filed along with appeal memo so also in accordance with the procedure prescribed under the above mentioned rules, could not be entertained in the present appeal for extending any relief as prayed in the application. So, this I.A., deserves to be and is hereby dismissed only on the aforesaid technical ground.

Dismissing the aforesaid I.A. No. 8669/08, does not mean that appellant is remedy-less. In the available circumstances, so also in view of the above mentioned High Court of Madhya Pradesh Rules 2008, this appeal is hereby disposed of by extending a liberty to the appellant to file the appropriate petition (MCC) under the concerning provision of High Court of Madhya Pradesh Rules 2008 under Order XLIV Rule 1 of CPC along with all necessary papers including appeal memo, certified copy of the impugned judgment and if there is any delay, then along with an application u/s 5 of the Limitation Act, permitting the appellant to prosecute the appeal against the impugned judgment and decree as indigent person. In such premises, the appellant is extended the liberty to file such a petition within 30 days from today.

Apart the aforesaid, in the available circumstances, Office is directed to return the certified copy of the impugned judgment and decree to the appellant through her counsel by retaining its photo copy on record, enabling her to file the aforesaid MCC. It is further observed that on filing the appropriate application u/s 14 read with Section 5 of the Limitation Act in the aforesaid MCC., the appellant shall be entitled to get the benefit of exclusion of the period in limitation to file such petition which has been spent by her in prosecuting the present appeal because the same is being disposed of only on the above mentioned technical ground and not on merits.

In order to avoid multiplicity of the litigation or complications, it is also observed that subject to disposal of the above mentioned petition of Order 44 Rule 1 of CPC., on arising the occasion, the appellant shall be at liberty to continue such proceeding in the First Appeal after payment of requisite Court fees, if it is held to be necessary.

Appeal is disposed of as indicated above. Certified copy as per rules.