SUITS BY INDIGENT PERSON

SUITS BY INDIGENT PERSON

BY: TUSHAR RAI

India being a welfare State provides the necessary Legal Aid and assistance to the poor and the downtrodden. Order XXXIII of the Code of Civil Procedure, 1908, is one such example of Legal Aid rendered to the Indigent Persons which inter-alia provides for the institution of Civil Suits by Indigent Persons. Initially, the expression “Pauper” was being used but later it was replaced with the expression “Indigent Person”.

At the time of institution of a Civil Suit, the Plaintiff(s) i.e. the person(s) instituting the Civil Suit, is/ are required to pay the requisite Court Fees as prescribed under the Court Fees Act, 1870. However, the poor people do not possess sufficient means to pay the Court Fees. Therefore, Order XXXIII comes to their rescue, by exempting them from the payment of the Court Fees at the first instance and allows them to prosecute the suit in forma pauperis subject to certain conditions as stipulated under the Order.

In the matter of A.A.Haja Muniuddin v. Indian Railways, (1992) 4 SCC 736, the Hon’ble Supreme Court observed that:

            ” Access to justice cannot be denied to an individual merely because he does not have the means to pay the prescribed fee.”

Definition

The definition of an Indigent Person is provided in the Explanation I to Rule 1 of the Order XXXIII, which states that a person is an indigent person–

1. if he is not possessed of sufficient means (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, or
2. 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 execution of a decree, and the subject matter of the suit.

Explanation II to Rule 1 provides that any property which is acquired by a person after the presentation of his application for permission to sue as an indigent person, and before the decision of the application, shall be taken into account in considering the question whether or not the applicant is an indigent person.

The expression “not possessed of sufficient means” mentioned in the Explanation I to Order XXXIII Rule 1, while defining with the word, ‘indigent person’, refers to person’s capacity to pay the Court Fee prescribed by law for the Plaint in such a suit. What is contemplated is not possession of the property but sufficient means with capacity to raise money to pay the Court Fee.

The Hon’ble Supreme Court in the case of, Sushil Thomas Abraham v. Skyline Builders, (2019) 3 SCC 415 observed as under:

“The question as to whether the plaintiff is possessed of sufficient means to pay the requisite Court fees for the plaint in the suit as per the provisions of the Court Fees Act, 1870 is required to be decided by holding an inquiry as prescribed under Rules 4 to 7 of Order 33 of the Code by the trial Court.

While examining this question, the Court cannot take into consideration the two properties. First, the property, which is exempted from the attachment in execution of a decree and the second, which is subject-matter of the suit. In other words, the aforementioned two properties cannot be regarded as “possessed” by the person concerned for determining his financial capacity to pay the requisite Court fees on his claim in the suit.”

The Hon’ble Supreme Court in the case of Mathai M. Paikeday v. C.K. Antony, (2011) 13 SCC 174 at page 179 opined that:

“ Moreover, the factors such as person’s employment status and total income including retirement benefits in the form of pension, ownership of realisable unencumbered assets, and person’s total indebtedness and financial assistance received from the family members or close friends can be taken into account in order to determine whether a person is possessed of sufficient means or indigent to pay requisite Court fee. Therefore, the expression “sufficient means” in Order 33 Rule 1 of the Code of Civil Procedure contemplates the ability or capacity of a person in the ordinary course to raise money by available lawful means to pay Court fee.”

Moving further into this Article, it is necessary to understand as to how such applications to sue as an indigent person are dealt with and the procedure prescribed under Order XXXIII.

An indigent person may apply to the Court for exemption from payment of Court Fees in the first instance. However, while moving such applications before the Court, one should keep in mind that the application:

1. contains the particulars required in regard to plaints in suits;
2. contains a schedule of the movable and immovable property belonging to the applicant, with the estimated value thereof; and
3. is signed and verified in the manner prescribed for the signature and verifications of Pleadings under Order VI Rule 14 & 15 respectively.

Once the application meets the above criteria, it is duly presented to the Court, either by the applicant in person or by his authorized agent, in case the applicant has been exempted from appearance by the Court.  After receipt of the Application, the Court may examine the Applicant in person or his Agent, as the case may be, regarding the merits of the claim and the property of the Applicant.

The Court will prima facie reject such applications in the following cases:

1. where it is not framed and presented in the prescribed manner; or
2. where the applicant is not an indigent person; or
3. where the applicant has, within two months next before the presentation of the application, has disposed of any property fraudulently or in order to be able to apply for permission to sue as an indigent person; or
4. where there is no cause of action;or
5. where the applicant has entered into an agreement with reference to the subject- matter of the suit under which another person has obtained interest; or
6. where the allegations show that the suit would be barred by any law; or
7. where any other person has entered into an agreement within him to finance the litigation.

If there is no reason to reject the application, then the Court may issue notice to the other party and the Government Pleader for not less than 10 days, for receiving such evidence as the application may adduce in proof of his indigency, and for hearing any evidence which may be adduced in disproof thereof. The Court shall conduct every inquiry into the question about the indigence of such applicant, by the Chief Ministerial Officer of the Court, unless the Court otherwise directs, and the Court may adopt the report of such Officer as its own finding or may itself make inquiry into the question. On the day fixed for hearing, after receiving evidence and examination of witness, the Court will hear the arguments. The Court shall then either allow or refuse to allow the applicant to sue as an indigent person.

If the Court is satisfied about his indigence then he will be exempted from payment of Court Fees at the time of institution of the Civil Suit. No prejudice is caused to the opposite party since the fee is a matter between such Applicant and the State.  When the application is allowed, it is numbered, registered and it shall be deemed as the plaint in the suit. The said suit shall proceed in all other respects as a suit instituted in the ordinary manner, except that the Plaintiff shall not be liable to pay Court fee, fees payable for service of process, appointment of pleader or for any other proceedings connected thereto. However, the Court may withdraw such permission to sue as an indigent person in certain cases as provided in Rule 9 of the Order XXXIII.

Rule 10 of the Order provides that where the indigent person succeeds in the suit, the Court shall calculate the amount of Court fees and costs and recover from the party as directed by the Court. Whereas Rule 11 and Rule 11-A provides that where the Plaintiff (indigent person) fails or the suit abates then the Court shall order him to pay Court fees and costs.

The Court Fees can be recovered in the following manner:

1. Where an indigent person succeeds in a suit, the State government can recover Court fees from the party as per the direction in the decree and it will be the first

charge on the subject-matter of the suit.

2. Where an indigent person fails in the suit, the Court fees shall be paid by him. Where the suit abates on account of the death of a plaintiff, such Court fees would be recovered from the estate of the deceased plaintiff.

Rule 9A provides that the Court may assign a pleader to an unrepresented indigent person. The Central Government or the State Government may make provisions for rendering free legal aid and services to indigent person to prosecute their cases. The State shall be deemed as a necessary party as per Rule 13.

It is noteworthy that similar to Order XXXIII, the Order XLIV of the CPC provides assistance to the Indigent Persons in preferring appeals.

Thus, Order XXXIII enables the poor, needy and downtrodden, who fulfill the criteria of an indigent person as prescribed under Order XXXIII, to seek justice by granting exemption from payment of requisite Court fees at the first instance. Order XXXIII allows such indigent persons to institute suit forma pauperis. It is regardless to mention that the intention of the Legislature must be duly considered while adjudicating such applications. The persons with sufficient means should not be allowed to sue as indigent persons whereas the persons in real need and without sufficient means be given the necessary assistance. The denial to access to Justice is also an Injustice.