LAWS(ALL)-1982-5-56

PRABHAT Vs. SANTOSH KUMARI

Decided On May 17, 1982
PRABHAT Appellant
V/S
SANTOSH KUMARI Respondents

JUDGEMENT

(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

(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.