MATHAI BRIJITHA Vs. THANKAPPAN NAIR

JUDGEMENT

(1.) This is a petition purported to be filed under O.XLIV R.1 of the Code of Civil Procedure, 1908, for allowing the petitioner to file the review petition as an indigent person. Petitioner was the appellant in the appeal which was dismissed with costs. She had been allowed to file the appeal as an indigent person as she was unable to pay the court fee required for the memorandum of appeal. The court fee payable on the review petition is Rs.4775/- under Art.5 of Schedule I of the Kerala Court Fees and Suits Valuation Act, 1959 (Act 10 of 1960). According to the petitioner, she is unable to pay the court fee required for the review petition. She has therefore filed this petition for being allowed to file the review petition as an indigent person. The question is whether this can be allowed, as Order XLIV R.1 speaks specifically only of appeals, and does not refer to review petitions. We may also mention that Order XXXIII, the other provision in the Code relating to indigent persons also speaks expressly of suits only.

(2.) Order XLIV R.1 provides that 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 the memorandum of appeal and may be allowed to file 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. Order XXXIII prescribes the procedure to be followed in applications for leave to institute a suit as an indigent person. It is necessary to refer only to R.8 which provides that where an application (for leave to institute a suit as an indigent person) is granted, it shall be numbered and registered and shall be deemed the plaint in the suit, and the suit shall proceed in all other respects as a suit instituted in the ordinary manner except that the plaintiff shall not be required to pay any court fee or fees payable for service of process in respect of any petition, appointment of pleader or other proceedings connected with the suit. This provision applies mutatis-mutandis by virtue of the provisions of R.1 of Order XLIV to appeals as well so that when a suit or an appeal is allowed to be instituted as an indigent person, the plaintiff or the appellant is absolved of the liability to pay court fee in respect of any petition, appointment of pleader or other proceedings connected with the suit or appeal.

(3.) Neither O.33 nor Order XLIV applies specifically to review petitions. But they relieve the plaintiff or the appellant from paying the court fee on any proceeding connected with the suit or appeal, so that the plaintiff or the appellant need not pay the court fee on a review petition (at the time of filing it), if it is a proceeding connected with the suit. "Connected" means "related, affiliated, associated or having something to do with" Webster). The institution of a suit or appeal carries with it as connected with it, the liability to have the judgment reviewed in appropriate cases. The lis does not terminate on the rendering of the judgment because the judgment may be reviewed if a proper case is made out. A petition for review is therefore a proceeding connected with the suit or appeal in which case O. XXXIII R.8 which applies both to suits and appeals relieves the plaintiff or the appellant from paying court fee on the review petition. In Umda Bibi v. Naima Bibi, (1898) ILR 20 All 410, a Division Bench of the Allahabad High Court was dealing with the question whether an application for review filed by the plaintiff in a suit which he had been allowed to institute in forma pauperis should bear court fee. After quoting S.410 of the Code of 1877, which corresponds to O.33 R.8 of the Code of 1908, the Bench observed: