ALIFIYA HUSENBHAI KESHARIYA v. SIDDIQ ISMAIL SINDHI & ORS.

Coram: Justices J.K. Maheshwari and Sanjay Karol
Dated: 27 May 2024
Law Point: A person who has been awarded monetary compensation but has not received it can file an appeal as indigent.

Facts:
The appellant, the original claimant before the Motor Accident Claims Tribunal, 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 underwent plastic surgery. At the time of the accident, she was earning Rs. 3,000/- per month, but post-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. The Tribunal awarded a sum of Rs. 2,41,745/- with 9% interest from the date of the claim petition till the date of realization and proportionate costs. Dissatisfied thereby, the claimant-appellant approached the High Court of Gujarat, wherein the claimant-appellant prayed for permission to file the said First Appeal as an indigent person. The High Court dismissed the Misc. Civil Application observing: “It is a matter of record that the claimants filed a 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. In light of the aforesaid, the applicant-appellant cannot be considered to be indigent person and therefore, he has to pay court fees first.”

Issue:
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?

Observations of the Court:
In Mathai M. Paikeday v. C.K. Antony (2011 SC), the concept of an indigent person has been discussed as: “What constitutes indigency. — The right to sue in forma pauperis is restricted to indigent persons. A person may proceed as a 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 received from family or close friends. Not only personal liquid assets, but also alternative sources of money should be considered.” The Code of Civil Procedure, 19084 provides for a mechanism by which a person who is indigent may file a suit or an appeal. Order XXXIII thereof pertains to the filing of suits and Order XLIV deals with appeals by such persons. Rule 1 of Order XLIV dealing with appeals filed as an indigent person, reads as under: “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 those provisions are applicable.”

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 (2001 SC) reveals the following principles:

1. It is an enabling provision for the filing of a suit by an indigent person without paying the court fee at the initial stage.
2. 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 be ordered to pay the same in the decree.
3. Even when a suit is dismissed, the court fee shall be recoverable by the State in the form of the first charge on the subject matter of the suit.

It was further held that – “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.” 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.

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 recorded the submission of the counsel for the claimant-appellant 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.

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.

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.

Decision:
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.