- (1.) 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.
(2.) 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 mem 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 disclosed 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 O. 44, R. 2, C. P. C. 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 immoveable property. Such an affidavit was, however, filed by him later on when the application under O. 44, R. 1. C. P. C. was to be disposed of A preliminary objection about the maintainability of the appeal has been taken by the respondent. According to him O. 43 does not provide for an appeal against an order refusing to permit the filing of an appear as an indigent person under O. 44, R. 1, C. P. C. According to him under O. 43, R. 1 (na) of the Code only an appeal against an order passed under the provisions of O. 33, Rr. 5 and 7 rejecting an application 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 Ss. 104 and 105, C. P. C. He contended that the appeal does not lie. I cannot agree to this. A perusal of S. 104. C. P. C. shows that it is couched in a positive form and enables a party to file on appeal against orders specified therein. The language of S. 105. C. P. C. however, is restrictive in nature and forbids an appeal from 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 cumulative effect is that the appeals lie only from those order which are specifically provided for in Sec. 104 or O. 43 of the Code. Order 43 only provides for an appeal against an order passed under O. 33, Rr. 5 and 10 and none under O. 44 of the Code. On the strength of this it was urged that apart from Sec. 104 of the Code and O. 43, R. 1, C. P. C. 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 luster if we closely examine the provisions of O. 44, R. 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 O. 33 in its application to appeals subject only to suitable changes when applied to appeals. Rule 1 of O. 33 defines an indigent person while R. 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 R. 1 after examining the documents before it as is done in the case of suits filed by an indigent person under O. 33, C. P. C. 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 flied 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 R. 5 of O. 33 of the Code at the preliminary stage or under R. 10, after hearing the opposite party also. Under both these circumstances the order rejecting the application would be appealable under O. 43, R. 1 (na ).
(3.) WHAT has happened 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 O. 44, R. 1 imports the provisions of O. 33 for the purposes of an appeal by an indigent person, the order of rejection could only be either under R. 5 or 10 of O. 33. There can be no difference in the nature of orders passed under R. 5 while rejecting the plaint under O. 33 or those passed on an application under O. 44, R. 1, C. P. C. 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 Bashir Hasan, (AIR 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 R. 11 of O. 22, 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 them is no specific provision for such appeal in O. 43 of the Code. This case was, however, considered by a Division Bench of this Court in Govind Singh v. Lala Beni Pd. (1969 All WR (HC) 346) and ratio of decision in AIR 19461 All 527 (supra) was net accepted. The Bench agreed with the following observations made by Hon. King, J. in Raju Mudali v. Chinnaraju Naidu (AIR 1941 Mad 51 ). "it is argued in support of the preliminary objection that the use of the word 'suit' in column (K) must necessarily exclude the word 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 the provisions of R. 9. As R. 9 is applicable to appeals it would be contrary to all rules or logical interpretation, it seems to me, if the word 'suit' in cl. (K) of O. 43, R. 1 is to bear a different meaning to what it bears in O. 22, R. 9. I accordingly overrule the preliminary objection and hold that this appeal does lie. " To hold otherwise would lead to an anomalous 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, them would be no remedy. In fact the very applicability of all the provisions of O. 33 to an appeal by m indigent-appellant makes such an order as one passed under R. 5 of O. 33, C. P. C. and will, as such, be appealable. The view that I 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 O. 44, R. 1, C. P. C. refusing to grant permission to the appellant to file an appeal as an indigent person. Tins preliminary objection, therefore, cannot be sustained and is hereby rejected.;