Suits by indigent persons.

Introductions to Indigent Persons

Order 33 deals with suits filed by ‘indigent persons’. The provisions of Order 33 are intended to enable indigent persons to institute and prosecute suits without payment of any court fees. Generally, a plaintiff suing in a court of law is bound to pay court fees prescribed under the Court Fees Act at the time of presentation of plaintBut a person may be too poor to pay the requisite court fee. This order exempts such person from the court fee at the first instance and allows him to prosecute his suit in forma pauperis, provided he satisfies certain conditions laid down in the order.

An indigent person is defined in explanation one to Rule 1 according to which is a person is an ‘indigent’ person:

  • 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
  • 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.

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. 

In A.A. Haja Muniuddin v. Indian Railway, Hon’ble Supreme Court has observed:

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

In Union Bank of India v. Khader International Construction, Hon’ble Supreme Court has held: 

“Order 33 CPC is an enabling provision which allows filing of a suit by an indigent person without paying the court fee at the initial stage. 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 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 Order 33 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 of a decree and the subject-matter of the suit he would be an indigent person.”

Inquiry into the means of an indigent person

Order 33 rule 1-A states that in the first instance, an inquiry into the means of the applicant should be made by the Chief Ministerial Officer of the court. The court may adopt the report submitted by such officer or may itself make an enquiry.

Order 33 rule 4 states that where the application submitted by the applicant is in proper form and is duly represented, the court may examine the applicant regarding the merits of the claim and the property of the applicant.

Order 33 rule 6 states that the court shall then issue notice to the opposite party and to the Government pleader and fix a day for receiving evidence as the applicant may adduce in proof of his indigency or in disproof thereof by the opposite party or by the Government Pleader. On the day fixed, the court shall examine the witnesses (if any), produced by either party, hear their arguments and either allow or reject the application.

Contents of application

As per Order 33 Rule 2, every application for permission to sue as an indigent person should contain the following particulars:

1. The particulars required in regard to plaints to suits;

2. A schedule of any movable or immovable property belonging to the applicant with the estimated value thereof; and

3. Signature and verification as provided in Order 6 Rules 14 and 15

The application should be presented by the applicant to the court in person unless exempted by the court. Where there are two or more plaintiffs, it can be presented by any of them. The suit commences from the moment an application to sue in forma pauperis is presented.

Rejection of application

As per Order 33 Rule 5, the court will reject an application for permission to sue as an indigent person in the following cases:

1. Where the application 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 before the presentation of the application, disposed of any property fraudulently or in order to get 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 suit appears to be barred by law; or

7. Where any other person has entered into an agreement with the applicant to finance costs of the litigation.

8. When permission is granted: Rules 8-9A

9. Where an application to sue as a indigent person is granted, it shall be deemed to be a plaint in the suit and shall proceed in the ordinary manner, except that the plaintiff will not have to pay court fees or process fees.

The court may assign a pleader to an indigent person if he is not represented by a pleader. The central government or the State government may make provisions for rendering free legal aid and services to indigent persons to prosecute their cases. A defendant can also plead set-off or counter claim as an indigent person.

Where permission is rejected: Rules 15-15A

Where the court rejects an application to sue as an indigent person, it will grant time to the applicant to pay court fees. An order refusing to allow an applicant to sue as an indigent person shall be a bar to a subsequent similar application. However, this does not debar him from suing in an ordinary manner, provided he pays the costs incurred by the Government pleader and the opposite party in opposing the application. 

Revocation of permission

Order 33 Rule 9 states that the court may, on an application by the defendant or by the Government pleader, revoke permission granted to the plaintiff to sue as an indigent person in the following cases:

1. Where he is in guilty of vexatious or improper conduct in the course of the suit; or

2. Where his means are such that he ought not to continue to sue as an indigent person; or

3. Where he has entered into an agreement under which another person has obtained an interest in the subject-matter of the suit.

Costs

Order 33 Rule 16 states that the costs of an application to sue as an indigent person shall be the costs in the suit.

1. Where indigent person succeeds. – As per Rule 10 where the plaintiff (indigent person) succeeds in the suit, the court shall calculate the amount of court fees and costs and recover from the party as ordered by the court.

2. Where indigent person fails. – As per Rule 11 and Rule 11-A where the plaintiff (indigent person) fails or the suit abates, the court shall order him (plaintiff) to pay court fees and costs.

Realization of court fees

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. 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.

Appeals by Indigent Persons

As per Order 44 Rule 1, any person entitled to prefer an appeal, who is unable to pay court fee required for memorandum of appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as an indigent person.

The present position is that an indigent person may also file an appeal on all the grounds available to an ordinary person. An indigent person can also file cross-objections.

 

By – Akshay Kumar Chaudhary (Intern in Lexis and Co.)

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