Suits by indigent person by Shivani Singh Sengar@Lexcliq

Indigent person

Order XXXIII of CPC deals with the suits by indigent person. An indigent person is one who does not possess sufficient

means to pay court fees and unable to proceed with any suit. Every application for permission to sue as indigent person

must contain the report of his moveable and immoveable property, with the estimated value annexed with the application.

When the application is in proper form and duly presented, the court, may think fit, examine the applicants or his agents

and the application must be duly verified and signed by the applicants. The court has the power to reject or withdraw the

application under order 33 even in the middle of the proceedings, if the court finds suitable grounds under Rule 5 & 9. If

the application is duly admitted and accepted by the court the suit will be treated as any other normal suit and court may

also provide the applicant a lawyer to represent him. If the applicant wins the suit the court will then decide who has to

pay the court fees but if the respondent wins the case the court fees is payable by the applicants. If the application under

Order XXXIII is rejected by any subordinate court the, the same is appealable.

In landmark judgement by Supreme Court in 2011 ‘Union Bank of India vrs. Khader International Construction and Ors’ ,

it was stated the Order XXXIII may also include any juristic person i.e. any corporate firm etc.

2. Rule 1- who may appeal [as an indigent person]-

Any person entitled to prefer an appeal, who isunable to pay the fee required for the memorandumof appeal, may present an application accompaniedby a memorandum of appeal, and may be allowed toappeal as [indigent person]

 

3. Scope of Rule 1 of Order 44

 

The result is that when an application made under Rule 1 ofOrder 44, comes up for hearing, the only question which hasto be considered is whether the applicant is an indigentperson or not.Any questions relating to the merits of the case, does notarise for consideration at that stage.A rejection of the application under Rule 1 can only meanthat the court is not satisfied about the claim of theapplicant that he is an indigent person and nothing more.It does not amount to a finding that the appeal is not fit foradmission on merits.

 

4. Before the Amendment Act of 1976.

Certain restrictions were imposed on the right of an indigent person to prefer an appeal under Sub-rule (2) of Rule 1. Sub-rule (2) of Rule 1 provides the court shall reject the application to appeal in forma pauperi, unless it is shown that the decree is contrary to law or to some usage having the force of law, or is other wise erroneous or unjust. This restriction was considered to be unjust an was so deleted by the Law Commission and the indigent person may also file an appeal on all the grounds available to an ordinary person. An indigent person can also file cross-objection.

 

5. Cross-Objection Though there is no specific provisions for filing cross-objection in forma pauperi, the principle underlyingOrder 44, Rule 1, would be applicable.

 

6. Power and Duty of Court

 

The question before the court during the hearing ofan application is whether an applicant is an indigentperson or not.If he is then the application will be allowed and thememorandum of appeal will be registered and if he is not, the application will be rejected.

 

7. Payment of Court fees: Rule 2

 

Shahzadi Begam v Alakh Nath AIR 1935 All 620 The rejection of an application for leave to appeal asan indigent person does not ipso facto result in therejection of the memorandum of appeal filed along withthe application. It only means that the court is not satisfied about the claim of the applicant as an indigent person.

Rule 2- Empowers the court to grant time for payment ofcourt fees when the application for leave to appeal asan indigent person is rejected.

 

8. Limitation:-

Limitation Time period for presenting an application for leave toappeal as an indigent person to the High Court is sixtydays and to the other courts is thirty days.The limitation starts from the date of the decreeappealed from.

by the opposite party in opposing his application for leave to sue as an indigent person.

 

CONCLUSION

Summarising up the indigent person under Order 33 is one who is either not possessed of sufficient means to

pay court fee when such fee is prescribed by law or is not entitled to property worth one thousand rupees when

such court fee is not prescribed. In both the cases, the property exempted from the attachment in execution of a

decree and the subject-matter of the suit shall not be taken into account to calculate financial worth or ability of

such indigent person. If a person fails in his action as an indigent person then he is bound to pay the court fee

of the respective court, and the remaining damages have to be borne by the State Government as if they had

committed the wrong. Whereas if indigent person won the case then he cannot be held liable to any kind of expenses fee or damages.

 

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