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https://www.mhc.tn.gov.in/judis C.M.P.No.4119 of 2022 Etc., batch

17. The learned Special Government Pleader would also contend that even if claimant has been permitted to sue as an indigent person before Claims Tribunal, when an appeal is filed his indigent circumstances has to be examined once again. In support of this contention, he would rely upon the Judgement reported in 2013 SCC Online Delhi 2742 – Nand Kishore Sharma Vs. Delhi Society for Prevention of Cruelty to Animals and Another.

35. In the Judgement of this Court reported in 97 LW 606 – R.Govindarajulu and another Vs. S.Dharman and another, the Division Bench of this Court has clearly and emphatically observed as follows:

“18.Thus, we find that uniformly it has been countenanced that the High Court, while hearing an appeal under the Act, exercises its ordinary appellate powers and should follow its practice and procedure as are normally attributable to it as an ordinary appellate Court; and in the absence of any circumscription or regulation of the said powers, the rules of practice and procedure, and power as per the provisions of the Code can be legitimately invoked for the purposes set out https://www.mhc.tn.gov.in/judis C.M.P.No.4119 of 2022 Etc., batch therein in the matter of dealing with such an appeal. Order XXXIII of the Code deals with institution of proceedings by indigent persons. Order XLIV deals with appeals by indigent persons and it contemplates, that appeals by indigent persons shall be dealt with in the same manner as institution of original proceedings by indigent persons. In this view, we have to hold that it will be competent for the appellants to invoke the aid of Order XLIV and thereby Order XXXIII of the Code.”
“If the plaintiff ultimately succeeds in the suit, the court would calculate the amount of court fee which would have been paid by the plaintiff if he had not been permitted to sue as an indigent person and that amount would be recoverable by the State from any party ordered by the decree to pay the same. It is further provided that when the suit is dismissed, then also the State would take https://www.mhc.tn.gov.in/judis C.M.P.No.4119 of 2022 Etc., batch steps to recover the court fee payable by the plaintiff and this court fee shall be a first charge on the subject matter of the suit. 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. Explanation I to Rule 1 of Order XXXIII states that an indigent person is one who is not possessed of sufficient amount (other than property exempt from attachment in execution of a decree and the subject matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit. It is further provided that where no such fee is prescribed, if such person is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution fo a https://www.mhc.tn.gov.in/judis C.M.P.No.4119 of 2022 Etc., batch decree, and the subject matter of the suit he would be an indigent person.”

43. This sentiment has been echoed in the latter Judgement reported in 2007 (5) SCC 698 – R.V.Dev Alias R. Vasudevan Nair Vs. Chief Secretary, Govt. of Kerala, where again the Bench has observed as follows:

“8. Order XXXIII of the Code of Civil Procedure deals with suits by indigent persons whereas Order XLVI thereof deals with appeals by indigent persons. 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 is required to be taken into consideration therefor. A person who is permitted to sue as an indigent person is liable to pay the https://www.mhc.tn.gov.in/judis C.M.P.No.4119 of 2022 Etc., batch court fee which would have been paid by him if he was not permitted to sue in that capacity, if he fails in the suit of the trial or even without trial. Payment of court fee as the scheme suggests is merely deferred. It is not altogether wiped off. Order XXXIII Rule 10 of the Code of Civil Procedure provides for the consequences in regard to the calculation of the amount of court fees as a first charge on the subject matter of the suit.”