LEGAL AID UNDER THE CODE OF CIVIL PROCEDURE, 1908 By Rashi Goel @Lexcliq

 

The Code of Civil Procedure, 1908 lays down the procedure for the courts of civil judicature. The civil litigation primarily deals with the property of the persons, is not paid that much concern by the State and society as is done to protect the life of the individual which falls in the category of criminal law. The equality before the law and the principle of equal standing is an essential principle of civil jurisprudence also. There are some provisions in ‘The Code of Civil Procedure’ for extending the benefits of legal aid to those who are poor and are incapable to engage the services of counsel and unable to pay the number of court fees, which are as follows:

1. Suits by Indigent Persons (Order XXXIII)-

 Order XXXIII of the Code of Civil Procedure deals with suits by indigent persons. As per Order XXXIII, a rule in any suit may be instituted by an indigent person. A person is an indigent person-

(a) If he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit, or

(b) Where no such fee is prescribed if he is not entitled to property worth one thousand rupees other than the property exempt from attachment in the execution of a decree, and the subject matter of the suit.

The object of Order XXXIII is to enable the poor persons who are too poor to pay the court fee, to institute a suit without paying the court fee. The main purpose of this provision is that neither party should evade the payment of court fee nor any genuine cause of litigant should fail for want of funds. This Order serves the following purposes—

(a) To protect the bona fide claims of indigent persons,

(b) To safeguard the interests of revenue; and

(c) To protect the defendant‘s right not to be harassed.

Other provisions under ORDER XXXIII are as follows:

  • Assigning and Selecting a Pleader to an Unrepresented Indigent Person (Order Xxxiii, Rule 9a(1) and Rule 9a(2))-

 Order XXXIII, Rule 9A(1) of The Code of Civil Procedure provides, where a person who is permitted to sue as an indigent person, is not represented by a pleader, the court may assign a pleader to him. Order XXXIII, Rule 9A(2)[1] of The Code of Civil Procedure provides for making the rules for selecting a pleader to be assigned under Rule 9A(1). The High Court may, with the previous approval of the State Government, be empowered to make rules for the mode of selecting pleaders which will be assigned to an indigent person under Rule 9A(1). The Court may also provide the facilities to such pleader and any other matter which is required to be or may be provided by the rules for giving effect to the provisions of Rule 9A(1).

  • Defense by an Indigent Person (Order XXXIII, Rule 17)-

As per Order XXXIII, Rule 17 [2] of The Code of Civil Procedure provides, any defendant, who desire to plead a set-off or counterclaim, may be allowed to set up such claim as an indigent person, and the rules contained in this Order shall so far as may be, apply to him as if he were a plaintiff and his written statement were a plaint.

In other words, an indigent person can also figure as a defendant and he can also plead a set-off and counterclaim as an indigent person. 

  • Power of Government to Provide Free Legal Services to Indigent Person (Order XXXIII, Rule 18)-

 Order XXXIII Rule 18 empowers the State to make supplementary provisions for extending the legal aid benefits to the indigent person. As per Rule 18, ―Subject to the provisions of this Order, the Central or State Government may make such supplementary provisions as it thinks fit for providing free legal services to those who have been permitted to sue as indigent persons.‖ With the previous approval of the State Government, The High Court is also empowered to make rules for carrying out the supplementary provisions made by the Central or State Government for providing free legal services to the indigent persons. Such rules may include the nature and extent of legal services and also the conditions under which they may be made available and the agencies through which services may be rendered among others.

  • At what Stage of Suit the Plaintiff Can Claim as Indigent-

At any stage, during the pendency of a suit, the plaintiff can raise the claim as indigent under Order XXXIII. Once such an application to claim as indigent is filed before the court, the court has to conduct an independent inquiry on the question of indigency. [3] 

  • Applicability of Order XXXIII to the Tribunals-

 The poor shall not be priced out of justice, marked by insistence on court fee and refusal to apply the provisions of Order XXXIII of The Code of Civil Procedure. The provisions of Order XXXIII will apply to tribunals that have the trappings of the civil courts.

2. Settlement of Disputes outside the Court (SEC. 89 of the Code of Civil Procedure)-

As per sec. 89 of The Code of Civil Procedure, where it appears to the court that there exist elements of a settlement that may be acceptable to the parties, the court shall formulate the terms of observation and after receiving the observations of the parties, the court may reformulate the terms of a possible settlement and refer the same for–

(a) Arbitration;

(b) Conciliation;

(c) Judicial settlement including settlement through Lok Adalat;

(d) Mediation.

Where a dispute has been referred—

(a) For arbitration or conciliation, the provision of the Arbitration and Conciliation Act, 1996 shall apply as if the proceedings for arbitration and conciliation were referred for settlement under the provision of this act;

(b) To Lok Adalat, the court shall refer the same to the Lok Adalat in accordance with the provision of sec. 20(1) of the Legal Services Authorities Act,1987, and all other provisions of the Act shall apply In respect of the dispute so-referred to the Lok Adalat;

(c) For judicial settlement, the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and the provisions of the Legal Services Authorities Act, 1987, shall apply as if the dispute were referred to Lok Adalat under the provisions of that Act;

(d) For mediation, the court shall effect a compromise between the parties and follow such procedure could also be prescribed. The intention of the legislature behind enacting sec. 89 is to provide the opportunity to the parties to opt for one of the four methods to resolve their dispute.[4]

3. Appeals by Indigent Persons- 

Order XLIV of The Code of Civil Procedure deals with the appeals by indigent persons. It is divided into three parts. The first part deals with who may appeal as indigent persons. As per the law, a person who is entitled to appeal but who is unable to pay the fee required under the memorandum of appeal may present an application accompanied by a memorandum of appeal. Such a person may be allowed to appeal as an indigent person in all matters including the presentation of such application.

The second part deals with granting of the time by the court for payment of court fees. In case the application is rejected, the court while rejecting the application may allow the application to pay the requisite court fee within such time as fixed by the court or extended by the court from time to time. On payment of the above-mentioned court fee, the memorandum of appeal has the same force and effect as if the fee has been paid at the first instance. It is to be noted that the rejection of the application for permission to appeal as an indigent person means that the court is not satisfied with the applicant‘s indigenous status. But it does not mean the appeal is not fit for admission.

The third part of the Order XLIV deals with an inquiry whether an applicant is an indigent person. Where an applicant is allowed to sue as an indigent person within the court from whose decree the appeal is preferred no further inquiry is required in reference to whether he is or not an indigent person. In case the applicant has made an affidavit that he’s not ceased to be an indigent person since the date of the decree. But if the govt pleader or the respondent disputes the reality and truthfulness of the statement made in such an affidavit, an inquiry into the above question shall be held by the appellate court or under the orders of the court of appeals by an official of that court. It is to be noted that if the affidavit is not disputed the applicant is entitled to carry the proceedings as an indigent person. As per the sub-clause (2) of part three, where the applicant is alleged to have become an indigent person since the decree appealed from, the inquiry into the question of whether or not he is an indigent person shall be made by the Appellate Court or, under the order of Appellate Court, by an officer of that Court unless the Appellate Court considers it necessary in the circumstances that the inquiry should be held by the Court from whose decision the appeal is preferred.

 

[1] Inserted by the Code of Civil Procedure (Amendment) Act,1976, Sec. 81. 

[2] Inserted by the Code of Civil Procedure (Amendment) Act,1976, Sec. 81. 

[3] Sivarajan K vs State of Kerala AIR 1998 Ker. 98.

[4] Salem Advocate Bar Association vs Union of India, AIR 2005 SC 3353.

 

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