Ram Sarup versus Union of India and Ors.

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.- .. .. RAM SARUP . -- v. '. UNION OF INDIA AND ORS . October 6, 1983 (A. P .. SEN AND E.· S.' VENKATARAMIAH, JJ.]

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Cude of Civil Procedure i.908-0rder 44 Rule 1 & 2-,-Suit by indigent' person dismissed-Appeal with an application under rule· I filed in High Couri · for permission- to appeal as an indigent person-Application under rule 1 disposed ·ofby_a one word order •dismissed'-~pplicalion made for permission. to pay C.ourt fee and prosecute appeal.....:. This application also di$missed, on ground earlier application dismissed on. 111'erits-Such order- Whether valid ~d justified.

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The Code of Civil Procedure '(Amendment) Acl 1976 (Act No. 104 of 1976)~0rder 44 Rule I & 2 C. P. C.-Amendment of-Explained.

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The appelli!.nt filed ta suit as an indigent persori in.t_he Subordin3:te Court questioning the validity of an· order dismissing him from service. The said auit was dismissed after contest. He filed an appeal in the High court as a · pauper along with an application un.der Rule 1 of Order 44 Code Of Civil Prodecure requesting that he may be' allwed to appeal as an indigent person. The application was dismissed by a Single judge by a one word order, 1 'dismissed". The itppellant thereupon m·ade an application praying for permission tO pay the requisite court fee and t:o presecute the appeal. That --application was also dismissed by the saffie Judge oO the ground thai as the applic'ation for leave to· appeal as an indigent person was dismissed on merits and not on the groUnd that the ·applicant was not an -indigeii.t person, there "'.as no question of granting time to the applicant to pay court fee.

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Allowing tho .Appeal to this Court i

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HELD : I (i) The Order of.the High Court is, clearly, unsustainable. What was rejected in the instant case was the application under Rule 1 of Order 44 of the Code of Civil Procedure. The High· Court ·should have therefore made all order as required by ·Rule 2 granting time to the appellant to.pay the requisite court fee and permit him to prosecute the appeal. The High ·Court failed to do so even when ail application was made for that purpose. (280 G-HJ

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(ii) The High.Court has lost sight of the elf.Ct -of the amendment of Rule 1 of.Order 44 of the Code of Civil Procedufe by the omissie:n of the former sub-rule (2) ~f Ruic !. [280 DJ

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After the amendment of the Code of Civil Procedure by the Code of Civil Procedure (Amendment) Act 1976, (Act No. 104of1976) ·which came into force with effect from February 1, 19.77 the rejection of the application

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' . • .•.J ,, ·t. ..... ..... .. made under Rule I of Order 44 of the Code of. Civil Procedure can· only mean A that the Court is not satisfied about the claim Or the applicant that he 1 is an indigellt person and nothirig more. It does n~t,·however, amount to a finding· that the appeal is not a fit one for admission on merits. Otherwise Rule 2 of Order 44 which PerlititS, PaYmerit tir co'Ur"t ree 8fter the application under Rule I is re]ected, would become meaningless. [277 G; 280 D-E}

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3 (i) By the amendment made in the year 1976 sub-rule (2) of Rule I ·of B Order 44 of the Code of Civil Procedure was deleted. The result is that when an applicatiorl' l1Ddei RuiC 1 of Order 44 of the Code of Ciil Procedure comes up for hearing, the Only question to b.e considered is whether the applicant is a.ri fridig-Cni.Pf:rsiJn Or not. AnY queStion felating to the merit's of the case d·oes'tiot' aiise.fOr cOnSideratic}n.'· at that stage. If the application is ranted, then' the inCinOfindUm Of 8.PpCat·woutd haVe to be registered aS an appeal and diSPoS1ed.'0fin;accorda'nce With Jaw. When the ap°peal is posted.for adffiission c tli'e· appfrarit ha·s· t'ci satisfy the Court ihat the" appeal meritS 3dn1iSsiOn. At that stage 1 the aPPellatit may dra-W tiie a:ttentio· of the Court nOt' nle:reiY to the judgment and decree appealed from but also .to all the relevant r.ecords in the CaSe to' sUtiStintiite his c1ailll' that tbe·-appea1 deserves to be admitted.

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. . · [279 o:H;'280 A-BJ

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D (ii)' Rule 2' of Order 44 as it noW stands requires that viihere an appli~ cation is rejected under Rule I. thereof, the Court may While rejecting the · aPlic3.tiori, alloW the aPPlicant to pay the requisite c·ourt fee within such ticrle aS'nia"Y be fiXed· by the Court or eteaded by it from time to time. and rip'Oll siiCh' pay1nent, the riiemorandUffi of appeal in respect of Which sUCh fee is' payable shall hav'e the sa1ne forCe and ·effect as if such fee had, been paid in the· first instance. If the requisite "court fef(_ is paid the appeal has to be E registered· and posted; for adniission. [280 B-C]

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C1v1i.. APP!lJ-LATE JuRisDICTION Civil Appeaf No. 8690 of 1983.

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Appeal by Special Leave from the Judgment and Order dated F the 3rd day of May, 1982 of the Delhi High Court in C.M. No. 6so'on9so.

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M.B. Lal for the Appellant:

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Dalveef Bhandari, R.N. Poddar and c.v. Subbti' .R~o for the G Respondents:

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The Judgment otthe Court was delivered by

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VENATARAMIAH, ·J. This appel by special leave' is file~ against the order of the High Court of Delhi dated May· 3, 1982. m C. M. H . No: 525'of !98l'{in C.M. (Pauper) No. 650 o{ i980) by which. the . High Court refused permission to the appeilahi' t(;. prosbcute' an appealwliich'he ha<i' presented eailler' as an judigen person~ after

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liAM SARUP v. UNION (Yenkataramiah, J.)

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paying the court fee within such time as may be fixed by the 'court as provided in Rule 2 of Order 44 of the, Code of Civil Procedure, . 1908.

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The facts of the case are these : The appellant filed a sui~ . questioning the validity of an order dismissi.ng him from the post of Senior Rakshak/Head Constable, Railway Protection Force, Delhi in .the court of the Sub Judge 1st Class, Delhi as anindigent person. That suit was dismissed after contest. Against the decree passed in the suit, ·he filed an' appeal before the High Court of Delhi in C.M. (Pauper) No. 650 of 1980 alqng with an application under Rule 1 of Order 44 of the Code of Civil Procedure requesting that he may be allowed to appeal as an indigent persqn. That application was dismissed by the learned Single Judge of the High Court by.a, one word order stating 'Dismissed' -0n May ·14, 1981. The appellant thereupon • made an application No; C. M. 525 Of 1981 praying for permission to pay the requisite court fee and to prosecute the appeal. That application was also dismissed by the same learned ~udge by the order dated May 3, 1982 in which he inter alia observed thus:

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"The application for leave . to oppeal as an indigent pers9n was dismiS!ed on merits, and not on the ground that the applicant was not indigent person. I could not ha".e dismjssed it on the latter ground wi~hout holding an inquiry as to the of the applicant. Since that applica• tion was dismissed on merits, there was no question of granting time to the applicant to pay oourt fee".

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This appeal is directed against the above order. A reading of the aforesaid order shows that the learned Judge was of the view that he had dismissed the '!Ppeal itself on merits on May 14, 1981 ' when he dismissed the application for leave to appeal as an indigent person. The question which now arises for consideration is whether such an order can be passed at the stage at which it was passed after the amendment of the Code of Civil Procedure by the Code of Civil Procedure (Amendment) Act, 1976 (Act No. 104 of 1976) which came into force with effect from February 1, 1977. Prior to the abovesaid amendD!ent, Order 44 of the Code of Civil Procedure contained two Rules. Rule 1 of order 44 of the Code of Civil Procedure which is material for purposes of this case·read as follows:

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• "l. (1). Any person entitled to prefer an appeal, who is unable to pay the'fee required for the memorandum of

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. . . , . appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as a pauper, subject, 'in all matters, including the presentation . of such application, to the provisions relating to suits by paupers, in so far as those provisions are applicable.

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(2) The Appellate Court, afier fixing a day for .hear· ing the applicant or his pleader and hearing him ·accord• ingly if he appears on that day, and upon a perusal of the application and of the judgment and decree appealed from, shall reject the application, unless it sees reason to think that the decree is contrary to law or to some usage having the force of Jaw, or is otherwise erroneous or unjust".

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It is seen from the above provision (as ir stood prior to its .amendment) that an appellant who wished to file an appeal without payment of_ the requisite court fee had to file an application accom- ' • panied by the. memorandum of appeal praying for permission to D prosecute the appe11l as an indigeni person. On the presentation of such an application, the appellate court aftee fixing a day for hearing the application or his pleader and hearing him accordingly° if he appears on that day and upon a perusal of the application and of the judgment and decree appealed· from was obliged to reject the application unless it saw reason to think that the decree was con-· E trary to law or lo some usage having the force of law or was otherwise erroneous of unjust. Under Rule 2 of Order 44 of the Code of Civil·Procedure as it stood prior to its amendment the inquiry i~o the pauperism of the. applicant could be niade either by the appellate. court of under the orders of the app,ellate court by the court from F whose decision the appeal had been preferred. No further inquiry on this question was, however, necessary if the applicant had been . allowed to sue or appeal as a pauper in the court from whose decree the appeal was preferred, unless the appellate court saw cause to direct such inquiry. It is thus seen that under the law in force prior to.the amendment by Act No. 104 of 1976 it Was necessary for a G person who wanted to file' an appeal in Jonna pauperis, as it used to be called then, to establish not merely that he had no me11ns to pay the requisite court fee but also that the deeree appealed against was contrary to law or to some usage haying the. force of. law or was · otherwi;e erroneous or unjust and that the dismissal of an applieaH tion ·to file an appeal in for ma pauperis could be either on .the ground that the applicant . was not a pauper, or on the ground that the decree was .not contrary to layv or to some usage having the force

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. !!.AM SARUP Y. UNION (Venkatatamiah, J.) 279

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,t of Jaw or was otherwise erroneous or unjust, or both. It was, therefore, necessary for the Court to examine the case in merits also though for the limited purpose of sub-rule (2) of Rule I of Order 44 of the Code of Civil Procedure before either granting or rejecting an · t- application to file an appeal in forma·pauperis.

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After the amendment of Order 44· of the Code of Civil Procedure by Act ·104 of 1976, there a're three Rules in it. Rules I and 2 thereof now read as. follows :

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"L (I) Any person entitled to prefer an appeal, who is unable to pay tl)e fee required for the memorandum of appeal, may present an application accompanied .by . a memorandum of appeal, and may be allowed to appeal is an.indigent person; subject, in all matters, inclu. ding the presentation of such application, to the provisions relating to suits by indigent person, in so far as those . provisions are applicable.

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·. 2. Where an application is· rejected pnder rule I, the .Court may, while rejecting 'the application, allow the applicant to pay the requisite court-fee, within such time as may he fixed by the Court or extended by it from time to timej. and upon such payment, the memorandum of appeal in respect of which such fee is payable shall have the same force and effect as ·if such fee had geen paid fo · the first instance."

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It is not necessary to set out· Rule 3 which is o~ly an improved version of the former Rule 2 here as it merely ·deals with the mo.de of holding an Inquiry into the capacity of the applicant to pay the court fee.' '

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By the above said amendment made in the year 1976 sub-rule · (2) of Rule I of Order 44 of the Code of Civil Procedure is deleted. The result is 44 of Civil Procedure Code comes up for hearing, the· only question · th.at when an application made under Rule I ·of Order , r , ' , which has now to be considerred is whether the applicant is an indi-' gent' person or not. Any question relating to the merits of the case · does not arise for consideration at that stage. If the applicaiion is granted, then th.e memorandum of appeal would have to be registered as ·ati appeal and diSposed of in· accordapce · with· Jaw, · Whe11·- the appeal is posted for admission the appellant has to satisfy t_he Court

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that the appeal merits admiSsion. At that stage the appellant may draw the'attention of the .Court not merely to the judgment and decree· appealed from but alo to all the relevant records in the case to substantiate his claiin that the appeal deseres to · be admitted. Rule 2 of Order 44 as it now stands. requires that where an application is rejected under Rule I thereof tbe Court may while. rejecting . the application, allo.w the applica'nt to pay the requisite court fee w_ithin such time as may be fixed · by the Court or extended by it from time to time and upon such payment, the memorandum of appeal in respect, of which such fee is payable shall have the same force and effect as if such fee had been paid in tlie first instance. If the,rquisite court fee is paid the appeal has to be registered and posted for admission.

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From the foregoitlg _it appears that the High Court lost sight of the effect of the amendment of Rule I of Order. 44 of the Code of Civil Procedure by the omission of the former s'ub-rule (2) of Rule 1. A rejection of the application made under. Rule I of Order 44 now can only mean tha,t the Court is not satisfied about the claim of the applicant that he is an indigent person and nothing more. It does not, however, amount to a finding that the appeal is not a fit one for admission on merits. Otherwise Rule 2 of Order -44 which permits payment of court fee after the application under Rule I is rejected, would become meaningless.

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It is no doubt irue that the learned Judge of the High Court states that he had dismissed the appeal on merits when he said 'dlsmissed' on May 14, 1981, but the appellant· COI)tends that that could not he the meaning to be attached to that Order having regard to the law now in force. It is likely that having regard to the· true legal position the appellant may not have placed at the time .when the application came up for consideration before the High Court all his iUbmissions which he would have made if the appeal had been posted for admission. In this ,situation the possiblity. of the occasioning of failure of justice cannot be ruled out. Since what was rejected was the application under Rule I of Order 44 of the Code of Civil Procedure the High Court should have made an order as required by Rule 2 thereof granting time to the appellan,t to pay. the requisite court fee and permitting him to prosecute the appeal.' The High Court failed to do so even when an application was made for thlit, purpose. 'I;he order of the Hi~ Court is <;!early un$Ustajna~le.

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RAM SARUP V. UNION (Venkataramiah, J;)

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We, therefore, set aside the order of the High Court passed on May 3, 1982 in C. M. No. s25 of 1981 and remand the case to it · to pass an order granting time to the appellant to pay the court fee as required by Rule 2 of Order 44 of the Code of Civil Procedure and to dispose of the cse in acordance with law without being injluen· ced ~y the citcull!stance that it had been rejected earlier on merits as observed by the learned Single Judge.

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Before concluding this judgment we wish to draw the· attention of the High Court to the desc~iption of the applications filed before it under Order 44 of the Code of Civil Procedure. Action may be taken to delete the word. 'pauper' froni their description in view of the amendments made in 1976 . . '

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The appeal is accordingly allowed. No order as to costs.•

Appeal a/fowed .

N.V.K.

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