Sushil Thomas Abraham v. M/s Skyline Build. Thr, its Partner - Important Supreme Court Judgment 2019

Sushil Thomas Abraham v. M/s Skyline Build. Thr, its Partner - Important Supreme Court Judgment 2019

In the case of Sushil Thomas Abraham v. M/s Skyline Build. Thr, its Partner & Ors. [Civil Appeal No. 117 of 2019], the question for consideration was whether in light of the earlier rejection of the appellant’s (plaintiff’s) prayer to file a suit as an “indigent person” under Order 33 Rule 1 of CPC by the Trial Court and the same having been upheld by the High Court in appeal, the plaintiff was not entitled to file an application/appeal under Order 44 Rule 1 of CPC against the decree of the trial court as an “indigent person”. In other words, the issue was whether the plaintiff (appellant) has to file a regular first appeal under Section 96 of the Code against the decree of the trial court on payment of ad valorem court fees on the memorandum of appeal.


The Supreme Court held that “dismissal of application made under Order 33 Rule 1 of the Code by the Trial Court in the earlier round of litigation is not a bar against the plaintiff to file an application/appeal under Order 44 Rule 1 of the Code before the Appellate Court.” It was held that the “grant and rejection of such prayer by the Trial Court is confined only up to the disposal of the suit” which is “clear from the reading of Rule 3(1) and 3(2) of Order 44, which contemplate holding of inquiry again into the question at the appellate stage as to whether the applicant is an indigent person or not since the date from the decree appealed from.” 


Accordingly, the case at hand was “remanded to the Appellate Court for holding an inquiry as contemplated under Order 44 Rule 3 (2) of the Code or by the Trial Court, if directed by the Appellate Court to the concerned Trial Court to do so and depending upon the case made out by the applicant/appellant in the inquiry, the Appellate Court was directed to “pass appropriate orders accordingly.” It was held that “if the appellant is able to prove in the inquiry with the aid of evidence that he is or has become an indigent person since the date of decree appealed from and is therefore unable to pay the ad valorem court fees on memorandum of appeal, his application will be allowed else dismissed.”

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