ALIFIYA HUSENBHAI KESHARIYAversusSIDDIQ ISMAIL SINDHI & ORS.

                 [2024] 5 S.C.R. 896 : 2024 INSC 457

                     Alifiya Husenbhai Keshariya
                                  v.
                     Siddiq Ismail Sindhi & Ors.
                      (Civil Appeal No. 6682 of 2024)
                                 27 May 2024
             [J.K. Maheshwari and Sanjay Karol,* JJ.]

                           Issue for Consideration
       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.

                                  Headnotes
       Motor Vehicle Act, 1988 – s.173 – Code of Civil Procedure,
       1908 – Or. XXXIII and Or. XLIV – Appellant-original claimant
       was injured in an accident – She filed a claim of Rs. 10 lakhs
       before the Motor Accident Claims Tribunal – The Tribunal vide
       award dated 17.10.2016 awarded a sum of Rs. 2,41,745/- –
       Dissatisfied, the appellant-claimant approached the High
       Court and filed a Misc. Application for permission to file the
       said First Appeal as an indigent person – The said application
       was dismissed by the High Court as the Claim Tribunal had
       partly allowed the claim petition of appellant and awarded
       a sum of Rs. 2,41,745/- – In the light of the same, the High
       Court observed that appellant cannot be considered an
       indigent person – Correctness:
       Held: 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 – This observation to be
       belied by the impugned order itself as the Single Judge of the
       High Court 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

* Author
[2024] 5 S.C.R.                                                         897

       Alifiya Husenbhai Keshariya v. Siddiq Ismail Sindhi & Ors.


     indigency was not extinguished thereby – In considered view of
     this Court, the High Court was incorrect in rejecting the Misc.
     Application – Also, the Appellate Court, in accordance with
     the Order XLIV Rule 3(2), did not conduct any inquiry – The
     same was necessitated since nothing on record speaks of the
     claimant-appellant having filed the claim before the 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 – Therefore 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, was
     not met – the order of the Single Judge of the High Court has
     to be set aside. [Paras 11, 15, 17, 18]

                             Case Law Cited
     State of Haryana v. Darshana Devi [1979] 3 SCR 184 : (1979) 2
     SCC 236; Mathai M. Paikeday v. C.K. Antony [2011] 7 SCR 230 :
     (2011) 13 SCC 174; R.V. Dev v. Chief Secretary, Govt. of Kerala
     [2007] 6 SCR 886 : (2007) 5 SCC 698; Union Bank of India v.
     Khader International Construction & Ors. [2001] 3 SCR 580 :
     (2001) 5 SCC 22 – relied on.

                               List of Acts
     Motor Vehicle Act, 1988; Code of Civil Procedure, 1908.

                            List of Keywords
     Award; Monetary compensation without actual receipt; Indigent
     person; Filing of appeal as an indigent; Order XLIV Rule 3(1) and
     Rule 3(2) of CPC.

                           Case Arising From
     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6682 of 2024
     From the Judgment and Order dated 07.08.2018 of the High Court
     of Gujarat at Ahmedabad in MCA No. 3 of 2018
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                                Appearances for Parties
       Ms. Aditi Anil Dani, Yashas R K, Advs. for the Appellant.
       Ms. Nidhi Sahay, Shashank Manish, Advs. for the Respondents.
                       Judgment / Order of the Supreme Court

                                           Judgment
       Sanjay Karol J.,
1.     Leave granted.
       At the outset, we may remind ourselves of what Krishna Iyer, J. had
       observed in State of Haryana v. Darshana Devi1 that
               “2. The poor shall not be priced out of the Justice market by
               insistence on court-fee and refusal to apply the exemptive
               provisions of Order 33, CPC.”
2.     The sole point for our consideration is whether a person who is
       entitled to receive compensation by way of a claim before the Motor
       Accident Claims Tribunal can be said to have given up its status as
       an ‘indigent person’, by virtue of the amount slated to be received. In
       other words, 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?
3.     The factual scenario giving rise to this appeal is :-
       3.1 The appellant, who was the original claimant before the Motor
           Accident Claims Tribunal, [Court of Motor Accident Claims
           Tribunal (Auxiliary) & 10th (Adhoc) Addl. District Court Jude,
           Jamnagar]2 in M.A.C.P.No.255 of 2011, 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 she underwent plastic surgery.
       3.2 At the time of the accident, she was earning Rs.3,000/- per
           month, but, post the accident, she sustained permanent


1    [1979] 3 SCR 184 : (1979) 2 SCC 236
2    Hereafter, ‘Tribunal’
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        Alifiya Husenbhai Keshariya v. Siddiq Ismail Sindhi & Ors.


             disablement, and hence had not been able to work thereafter.
             A claim was filed for Rs.10 lakhs with 18% interest and costs.
      3.3 The Tribunal vide Award dated 17th October 2016, awarded a
          sum of Rs.2,41,745/- with 9% interest from the date of claim
          petition till the date of realization and proportionate cost(s).
4.    Dissatisfied thereby, the claimant-appellant approached the High
      Court of Gujarat by way of Regular First Appeal No. 2611/2017.
      Misc. Civil Application No.3/2018 was filed therein by which the
      claimant-appellant prayed for permission to file the said First Appeal
      as an indigent person.
5.    The High Court vide judgment and order dated 7th August, 2018
      dismissed the Misc. Civil Application observing as under :
             “….3. It is a matter of record that the claimants filed 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.
             4. In light of the aforesaid, the applicant–appellant cannot
             be considered to be indigent person and therefore, he has
             to pay court fees first.
             5. Ms. Rana, learned counsel for the applicant, however,
             submits that, till date, no amount is received by the
             applicant. It is open for the applicant to pursue the said
             remedy before appropriate forum.
             In view of the above, present application is not entertained.
             Time to deposit Court fees is granted for 8 weeks from
             today.”
                                                   (Emphasis supplied)
6.    We may refer to this Court’s decision in Mathai M. Paikeday v.
      C.K. Antony,3 wherein the concept of an indigent person has been
      discussed at length. Relevant extracts are reproduced as follows:-



3    [2011] 7 SCR 230 : (2011) 13 SCC 174
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       “16. The concept of indigent person has been discussed in
       Corpus Juris Secundum (20 CJS Costs § 93) as following:
            “§ 93. What constitutes indigency.—The right
            to sue in forma pauperis is restricted to indigent
            persons. A person may proceed as 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.”
       17. The eligibility of person to sue in forma pauperis has
       been considered in American Jurisprudence (20 Am Jur
       2d Costs § 100) as thus:
            Ҥ 100. Eligibility to sue in forma pauperis;
            generally.—The burden of establishing indigency
            is on the defendant claiming indigent status, who
            must demonstrate not that he or she is entirely
            destitute and without funds, but that payments
            for counsel would place an undue hardship on
            his or her ability to provide the basic necessities
            of life for himself or herself and his or her family.
            Factors particularly relevant to the determination
            of whether a party to a civil proceeding is
[2024] 5 S.C.R.                                                              901

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                      indigent are: (1) the party’s employment
                      status and income, including income from
                      government sources such as social security
                      and unemployment benefits; (2) the ownership
                      of any unencumbered assets, including real or
                      personal property and monies on deposit; and
                      finally (3) the party’s total indebtedness and any
                      financial assistance received from family or close
                      friends. Where two people are living together and
                      functioning as a single economic unit, whether
                      married, related, or otherwise, consideration
                      of their combined financial assets may be
                      warranted for the purposes of determining a
                      party’s indigency status in a civil proceeding.”
7.    The Code of Civil Procedure, 19084 provides for mechanism by
      which a person who is indigent may file a suit or an appeal. Order
      XXXIII thereof pertains to filing of suits and Order XLIV deals with
      appeals by such persons.
8.    In the present matter, we are concerned with an appeal envisaged
      under Section 173 of the Motor Vehicle Act, 1988.5
9.    Rule 1 of Order XLIV dealing with appeal filed as an indigent person,
      reads as under :
              “1. Who may appeal 3[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.”
10. The operation of the above two provisions has been noted by this
    Court in R.V. Dev v. Chief Secretary, Govt. of Kerala,6 in para 8
    whereof it was observed :


4    Hereinafter C.P.C.
5    Hereinafter the ‘MV Act’
6    [2007] 6 SCR 886 : (2007) 5 SCC 698
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              “8……When an application is filed by a person said to be
              indigent, certain factors for considering as to whether he
              is so within the meaning of the said provision are required
              to be taken into consideration therefor. A person who is
              permitted to sue as an indigent person is liable to pay the
              court fees which would have been paid by him if he was
              not permitted to sue in that capacity, if he fails in the suit
              at the trial or without trial. Payment of court fees as the
              scheme suggests is merely deferred. It is not altogether
              wiped off.”
                                                     (Emphasis supplied)
       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 & Ors.7 reveals the following principles :
       (i)    It is an enabling provision for filing of a suit by an indigent
              person without paying the court fee at the initial stage.
       (ii)   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 ordered to pay the same
              in the decree.
       (iii) Even when a suit is dismissed, the court fee shall be recoverable
             by the State in the form of first charge on the subject-matter
             of the suit.
       It was further held that –
              “20…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.”
11. 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.


7   [2001] 3 SCR 580 : (2001) 5 SCC 22
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       Alifiya Husenbhai Keshariya v. Siddiq Ismail Sindhi & Ors.


12. It is unquestioned that a person dissatisfied with the amount of
    compensation received can file an appeal. In the present case, for
    a claim of Rs.10 lakhs, the Tribunal awarded compensation which
    was less than Rs. 2.5 lakhs. Without commenting on the merits of
    the matter, we recognize the desire of the claimant-appellant to file
    an appeal.
13. Once again turning to Darshana Devi (supra), we refer to certain
    observations made therein -
           “5……Our perspective is best projected by Cappelletti,
           quoted by the Australian Law Reform Commission:
           “The right of effective access to justice has emerged with
           the new social rights. Indeed, it is of paramount importance
           among these new rights since, clearly, the enjoyment
           of traditional as well as new social rights presupposes
           mechanisms for their effective protection. Such protection,
           moreover, is best assured by a workable remedy within the
           framework of the judicial system. Effective access to justice
           can thus be seen as the most basic requirement — the
           most ‘basic human right’ — of a system which purports
           to guarantee legal right.” [ M. Cappelletti, Rabels, (1976)
           669 at 672]
           We should expand the jurisprudence of access to justice
           as an integral part of Social Justice and examine the
           constitutionalism of court-fee levy as a facet of human
           rights highlighted in our Nation’s Constitution. If the State
           itself should travesty this basic principle, in the teeth of
           Articles 14 and 39-A, where an indigent widow is involved,
           a second look at its policy is overdue. The Court must
           give the benefit of doubt against levy of a price to enter
           the temple of justice until one day the whole issue of
           the validity of profit-making through sale of civil justice,
           disguised as court-fee, is fully reviewed by this Court…”
14. In the present case although the State is not the one in appeal, the
    observations in regard to the insistence upon court fees by the High
    Court to be taken from the meager amount awarded as compensation
    even after having recorded that she had not yet received the said
    amount, has prompted us to refer to the above extract.
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15. 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.
16. 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.
17. 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
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         Alifiya Husenbhai Keshariya v. Siddiq Ismail Sindhi & Ors.


     pleader objects or disputes such claim in which case an inquiry shall
     be held by the Appellate Court or under the orders thereof.
18. 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.
19. Having observed as above, we allow the appeal and set aside
    the impugned judgment and order dated 7th August, 2018 of the
    learned Single Judge passed in Misc. Civil Application No.3/2018 in
    Regular First Appeal No.2611/2017. It would have been ideal for us
    to have remanded the matter to the High Court for an inquiry to be
    conducted by its orders in accordance with Order XLIV, however, in
    the peculiar facts and circumstances of this case, keeping in view
    that considerable time has passed since the impugned order in
    the First Appeal, we grant liberty to the appellant to appeal as an
    indigent person observing that, at the relevant time, her application
    ought to have been looked into, verified and then ordered upon,
    which was not done.
20. While recognizing that in ordinary circumstances this Court should
    not impose timelines for disposal of cases, but considering the facts
    of this case, in particular, that the Award of the Tribunal is dated 17th
    October, 2016, and the rejection of Misc. Civil Application seeking
    permission to file the appeal as an indigent person before the High
    Court, is dated 7th August, 2018, we request the High Court that the
    appeal filed by the claimant-appellant be decided expeditiously, and
    preferably within a period of six months from the date of receipt of
    the copy of this judgment. We direct the Registry to immediately
    transmit the same to the learned Registrar General of the High Court
    of Gujarat for necessary follow-up action.
     Pending application(s), if any, shall stand disposed of.

     Result of the case: Appeal allowed.



     †
         Headnotes prepared by: Ankit Gyan