Suit by indigent person

Code of civil procedure

 
 
 
 
 
 
 

                                                                     
                                   
 Table of contents

 Introduction

 Who Can File A Pauper Application?

 Meaning And Scope: Indigent Person

 Cost Where Indigent Person Succeeds

 View Of High Courts

 Procedure Where Indigent Person Fails

 Remedies in case of refusal of leave to file suit in forma pauperis

 Rejection of application

 Amendments –order 33

 Conclusion

 Related cases

  A.A. HajaMuniuddin v. Indian Railways, (1992) 4 SCC 736

  Union Bank of India v. Khader International Construction(2001) 5

SCC 22,

  R.V. Dev v. Chief Secretary, Govt. of Kerala (2007) 5 SCC 698

  UOI v. Khaders International Construction Ltd AIR 1993 Ker. 31

  MangluChattar v. MaheshwarBhoi

  Chandrareka v. Secretary of State of India

  Ganga Dahal v. M.T. Gaura

  
 
 
  
Introduction
Order XXXIII relates to be filled by the indigent persons. 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 exempted from attachment in execution of the
degree, to enable him to pay prescribed fees. An application is to be filled along with the suit for
permission to allow the applicant to file the suit as an indigent person. After due inquiry the court
however may reject the application for permission to file the suit as an indigent person on the
ground mentioned in Rule 5. A person having been declared as indigent person can be
disappeared on the ground mentioned in Rule 9. Under Rule 18 the state government can provide
free legal service to indigent person.
The object and scope of Order 33 (Indigent person)
The object of Order 33 (suits by indigent persons) is to enable poor litigants to file a plaint
without payment of Court fee. The Court granting permission to sue as indigent person does not
mean that the person is exempted from the payment of the requisite Court fees. The payment of
Court fee is merely postponed. If the indigent person succeeds in the suit, the amount of Court
fee shall be recoverable by the Government and shall be the first charge on the subject matter of
suit. If the indigent person fails in suit, the Court fee shall be paid by him. The Collector is
empowered by law to recover the Court fee as arrears of land Revenue.
Who Can File A Pauper Application?
It was held that pauper application should be filled by only natural person and into its ambit and
scope judicial person also include. This is a settled position in UOI v. Khaders International
Construction Ltd[1]. It is well settled that the provisions of Order XXXIII, Rule 1 CODE OF
CIVIL PROCEDURE, 1908 have been enacted to enable poor persons to seek justice by filling
suits or appeals without court fee and in this context, the sufficient means would not be sufficient
property and includes such means on which the bare living of the person who are plaintiff and
their family members is dependent. In fact what is intended is capacity to raise funds by norm
and available means and not by any means whatsoever, illegal or improper. It cannot be the
purpose of this legislation that the indigent person should first deprive himself of the sole means
of livelihood or alienate all his assets and seek justice in penury.
If during the pendency of suit the applicant, who is an indigent person, is died, it cannot be said
that afterwards his legal heirs can get benefit.
Meaning And Scope: Indigent Person
The concept is well explained by the Orissa high court in the case of MangluChattar v.
MaheshwarBhoi as follows, the tools of artisans are exempted from the attachment. In the instant
case according to the findings of the trial court, the appellant possessed of tools and weaving
materials and they get daily wages. Both these items are covered under the Section 60(1) of
CODE OF CIVIL PROCEDURE, 1908. There is no other evidence adduced from the side of the
defendant to show that the petitioners are possessed of any other property. Therefore there is no
dispute about the fact that the appellants are all weavers and their weaving materials consist of
tools of artisans. These properties are not to be taken into consideration to find out whether they
will be able to pay the court fee. So also the daily wages they get cannot be taken into
consideration for the aforesaid purpose. On the aforesaid analysis, it should be held that the
appellants are indigent persons and, therefore, they should be allowed to sue as indigent person.
The Supreme Court of India has settled the issue that, whether a public company can file a suit as
an indigent person while holding the judgement of UOI v. Khader International Construction,
held that, the word “person” has to be given its meaning in the context in which it is used. It
refers to a person who is capable of filling a suit and this being a benevolent provision; it is to be
given an extended meaning. Therefore, a public limited company, which is otherwise entitled to
maintain suit as a legal person, can every well maintain application under Order XXXIII, Rule 1,
CODE OF CIVIL PROCEDURE, 1908.
The word “person” mentioned in Order XXXIII includes not only a natural person but other
judicial person also.
 Cost Where Indigent Person Succeeds
Where the plaintiff succeeds in the suit, the court shall calculate the amount of court fees which
would have been paid by the plaintiff if he had not been permitted to sue as an indigent person;
such amount shall be recoverable by the state government from any party Ordered by the decree
to pay the same and shall be a first charge on the subject matter of the suit.
Such a decree is executed by the collector to institute new proceedings to pursue for the recovery
of the amount of court fee from the person or property liable to pay the court fee, that too as
arrears of land revenue hence, separate recovery proceedings cannot be pursued in execution
proceedings.
But the situation is different when we talk of Indigent person, in a situation where a suit is filled
by the indigent person for realization of full contractual amount from government. Decree was
passed in favour of plaintiff. Direction was issued to defendant State Government to pay cost of
plaintiff as liability was imposed on defendant to pay court fee payable to Government, hence,
proceedings initiated against plaintiff for recovery of court fee was not maintainable.
View of High Courts
This issue was also there for consideration before the Madras High court in Chandrareka v.
Secretary of State of India, a division bench held that the plaintiff in that particular suit who
obtained a decree for Rs. 100 being a moiety of the property claimed is liable to pay court fee
with regard to the sum of Rs. 100 and the first defendant who contested the suit is liable to pay
court fee for the balance amount under section 411 of CODE OF CIVIL PROCEDURE, 1908 of
1881.
This question also came before the Allahabad High Court in the case of Ganga Dahal v. M.T.
Gaura, a division bench of the Allahabad High court has held that under Rule 10 of Order 33 of
the CODE OF CIVIL PROCEDURE, 1908, the legislature deals with the case of a pauper
plaintiff who succeeds in the suit and under Rule 11 with the case of a pauper plaintiff who fails
in the suit. There is no separate provision for a case like the present, in which a pauper plaintiff
has partly succeed and partly failed. Presumably the court is intended to deal with such a case by
combining the provision of the two Rules. It is clear that, if plaintiff who is permitted to institute
the suit as an indigent person succeeded in the part in a suit, the court fee payable by him for the
suit, the court fee payable by him on the plaint or memorandum of appeal has to be apportioned
between the plaintiff and the defendant in the proportion to the success of the each party.
Therefore the liability of the plaintiff who sued as indigent person or in the “forma pauperis” to
pay the court fee if he succeeds entirely in the suit and to pay the court fee in proportion to the
success if he succeeds partly in the suit under the provision of Rule 10 and to pay the entire court
fee if he fails in the suit under Rule 11 of the Order 33 of the present code and under the
analogous provisions for the previous code is well established.
Procedure Where Indigent Person Fails
Rule 11 of Order 33 of CODE OF CIVIL PROCEDURE, 1908 deals with this aspect of Suits by
indigent person. Where the plaintiff fails in the suit or the permission granted to him to sue as an
indigent person has been withdrawn, or where the suit is withdrawn of dismissed.
1. Because the summons for the defendants to appear and the answer has not been served upon
him in consequences of the failure of the plaintiff to pay the court fee or postal charges,
chargeable for such services or to present copies of the plaint or concise statement, or
2. Because the plaintiff does not appear when the suit is called on for hearing the court shall
Order the plaintiff, or any person added as a co plaintiff to the suit, to pay the court fees which
would have been paid by the plaintiff if he had not been permitted to sue as an indigent person.
Amendments –order 33
 Substitute the following for the existing Rule 11: where the plaintiff fails in the suit or is
dispaupered or where the suit is withdrawn or where the suit is dismissed –
(A). because the summons for the defendant to appear and answer has not been served upon him
in consequences of the failure of the plaintiff to pay the court fees or postal charges chargeable
for any service.
(B) because the plaintiff does not appear when the suit is called on for hearing the court shall
Order the plaintiff or any person added as a co plaintiff to the suit, to pay the court fee and in the
case of abandonment of part of the payable by the plaintiff he had not been permitted to sue as a
pauper.
In cases where the plaintiff is dispaupered the court may instead of proceeding under the
previous paragraph, Order the plaintiff to pay the requisite court fee within a time to be fixed by
it and in default dismiss the suit and make an Order for the payment of the court fee.
Where the court finds that the suit has been instituted unreasonably or improperly by a next
friend on behalf of minor plaintiff on a cause of action which accrued during the minority of
such plaintiff, the court may Order the next friend to personally pay the court fee."
Remedies in case of refusal of leave to file suit in forma pauperis
When in an application made to file a suit in forma pauperis leave is refused to allow the suit to
be filed in forma pauperis and when subsequently the court-fee is not paid within the time given
for payment and the application made to file the suit in forma pauperis is finally rejected or
dismissed, the final orders passed would amount to rejection of the plaint and the remedy of the
applicant against such an order is not by way of revision but by way of appeal, such an order
being a ‘decree’ within the meaning of S. 2 (2) of the Code of Civil Procedure.
The earlier order passed refusing permission to sue in forma pauperis merges in such a decree
and after passing of the final order rejecting or dismissing an indigent person’s application for
pauperism the remedy for questioning the correctness of the order of the court refusing
permission to file the suit in forma pauperis is only to prefer an appeal against the final order
passed rejecting or dismissing the application and not to file a revision against the earlier order
passed refusing permission to file the suit in forma pauperis, though such a revision lies before
the application is finally rejected or dismissed.
Rejection of application
The court shall reject an application for permission to sue as an indigent person

ü Where it is not properly framed and presented in the manner prescribed by Rules 2 and 3, i.e.,
full particulars as detailed above are not given or where the application is not presented by the
proper person; or

ü Where the applicant is not an indigent person; or

ü Where he has, within two months next before the presentation of the application, disposed of
any property fraudulently or in order to be able to apply for permission to sue as an indigent
person, provided that such an application shall not be rejected if after taking into account the
value of the property disposed of by the applicant, the applicant would be entitled to sue as an
indigent person; or

ü Where his allegations do not show a cause of action; or

ü Where he has entered into any agreement with reference to the subject-matter of the proposed
suit under which any other person has obtained an interest in such subject-matter; or

ü Where the allegations made by the applicant in the application show that the suit would be
barred by any law for the time being in force; or
ü Where any other person has entered into an agreement with him to finance the litigation.
(Order XXXIII, Rule 5).

This rule is intended to be exhaustive.

An application to sue as an indigent person is a composite document consisting of an

unstamped plaint and an application for permission to sue in forma pauperis. If the application
for permission to sue in forma pauperis is rejected, the plaint still remains and the court may, in
its discretion, allow the petitioner to pay the court fee and in such a case the suit shall be deemed
to have been instituted on the date of presentation of the application. After rejection of the leave,
the court should consider whether the petitioner plaintiff should be given time for payment of
court fee and pass appropriate orders.

Procedure:

             When the court sees no reason to reject the application on any of the grounds stated
above, it shall fix a day after notice to the opposite party and the Government pleader for
receiving such evidence as the applicant may adduce in proof of his pauperism, and for hearing
any evidence which may be adduced in disproof thereof.

The court examines the witnesses produced by either party and the applicant or his agent
makes a full record of their evidence and hears arguments and after such hearing may allow or
refuse to allow the applicant to sue as an indigent person. Where the application is granted it is
numbered and registered and deemed the plaint in the suit. The suit then proceeds in the ordinary
manner except that the plaintiff is not liable to pay any court-fee, other than fee payable for
service of process. (Order XXXIII, Rules 6-8).

The High Court was labouring under a mistake when it said that the enquiry into the
question whether the respondent was an indigent person was exclusively a matter between him
and the State Government and that the appellant was not interested in establishing that the
respondent was not an indigent person.
 Order XXXIII, Rule 6 provides that if the court does not reject the application under
Rule 5, the court shall fix a day of which at least 10 days’ notice shall be given to the opposite
party and the Government pleader for receiving such evidence as the applicant may adduce in
proof of pauperism and for hearing any evidence in disproof thereof.

Under Order XXXIII, Rule 9, it is open to the court on the application of the defendant
to dispauper the plaintiff on the grounds specified therein, one of them being that his means are
such that he ought not to continue to sue as an indigent person.

Immunity from litigation unless the requisite court fee is paid by the plaintiff is a
valuable right for the defendant. And does it not follow as a corollary that the proceedings to
establish that the applicant-plaintiff is an indigent person, which will take away that immunity, is
a proceeding in which the defendant is vitally interested?

To what purpose does Order XXXIII, Rule 6, confer the right on the opposite party to
participate in the enquiry into the pauperism and adduce evidence to establish that the applicant
is an indigent person unless the opposite party is interested in the question and entitled to avail
himself of all the normal procedure to establish it.

Where a person, who is permitted to sue as an indigent person, is not represented by a

pleader, the court may, if the circumstances of the case so require, assign a pleader to him.
(Order XXXIII, Rule 9A).

Where the plaintiff succeeds in the suit, the court shall calculate the amount of court-fees
which would have been paid by the plaintiff if he had not been permitted to sue as a pauper, and
such amount shall be recoverable by the State Government from any party ordered by the decree
to pay the same and shall be a first charge on the subject-matter of the suit. (Ord XXXIII, Rule
10).

A suit by an indigent person or a person claiming to be an indigent person must be

regarded as instituted on the date of the presentation of application for permission to sue in forma
pauperis as required by Rules 2 and 3 of Order XXXIII, C.P.C. When permission to sue as an
indigent person is granted by the court under Order XXXIII, Rule 7, the petition or application
must be regarded as a plaint filed on the day when the application was presented to the court.

Vijay Pratap Singh v. Dukh Haran Nath Singh

An application to sue in forma pauperis is but a method prescribed by the Code for
institution of a suit by an indigent person without payment of fee prescribed by the Court Fees
Act. If the claim made by the applicant that he is an indigent person is not established the
application may fail. But there is nothing personal in such application. The suit commences from
the moment an application for permission to sue in forma pauperis as required by Order XXXIII
of the Code of Civil Procedure is presented, and Order I, Rule 10 of the Code of Civil Procedure
would be as much applicable in such a suit as in a suit in which court-fee had been duly paid.

There is nothing in Order XXXIII, C.P.C. which prevents an applicant from telling the
court that although he had prayed for permission to sue in forma pauperis, he is now in
possession of funds and would like to pay the court fee on the application treating it as a plaint.

Thereby, in effect, the applicant withdraws his prayer for permission to sue as an
indigent person and requests the court not to apply the provisions of Order XXXIII to him If the
court agrees, and, generally in practice the court does agree, to treat the application as a plaint, in
view of the fact that it contains all the necessary particulars required in a plaint, there would be
no objection to the suit being treated as one instituted by the presentation of a plaint. By
acceptance of the court-fee by the court, the document, namely, the plain would, by virtue of S.
149, C.P.C. have the same force and effect as if sue fee had been paid in the first instance, viz.,
on the date it was presented the Court.

Where the plaintiff fails in the suit or is dispaupered, or where the suit is withdrawn or
dismissed for default on failure of the plaintiff to pay f postal charges chargeable for the service
of the defendant, the court shall order the plaintiff, or any person added as a co-plaintiff to the
suit, to pa the court-fees which could have been paid by the plaintiff if he had been permitted to
sue as an indigent person. (Order XXXIII, Rule 11).
 By refusing the application for forma pauperis, the proceedings are no terminated by the
trial court. If the plaintiff fails to pay the court fees within the time fixed, the trial court has to
make an order for rejection the plaint. The trial court cannot also pass an order for rejection of
the plaint if an appeal against the order of the trial court refusing the application for forma
pauperis is pending in the High Court.

It w accordingly directed by Hon. M.L. Bhat, J. of the Allahabad High Court that
proceedings in the trial court shall continue until the decision of the appeal in the High Court
regarding pauperism. The trial of the suit in the trial court shall be subject to any order which
may be passed in the appeal by the High Court. The disposal of the suit shall, however, depend
on the decision of the appeal.

Related cases

Ø In A.A. HajaMuniuddin v. Indian Railways[2],  this Court has observed: "5. ... Access to
justice cannot be denied to an individual merely because he does not have the means to pay the
prescribed fee."

Ø In Union Bank of India v. Khader International Construction[3], this Court has held:

"20. 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."

Ø R.V. Dev v. Chief Secretary, Govt. of Kerala[4], this Court has held:

"8. Order 33 of the Code of Civil Procedure deals with suits by indigent persons whereas Order
44 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 are required to be taken into consideration therefor. A person who is permitted to
sue as an indigent person is liable to pay the 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 at the trial or even without trial.
Payment of court fee as the scheme suggests is merely deferred. It is not altogether wiped off."

Conclusion
In the end the author would like to conclude the project, that my hypothesis was partially
incorrect regarding the position of indigent person when he fails in the suit brought by him, the
hypothesis is that an indigent person cannot be made liable to pay anykind of damages or
compensation, but according to Order 33 Rule 11 of Code of Civil Procedure, an indigent person
cannot be held liable for any kind of damages other than the court fee, i.e. 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.
 
                                        
 
 
 
 
 
 
 
 
  
                                            Bibliography
Websites referred

 http://www.legalblog.in/2011/07/indigent-person-under-code-of-civil.html

 http://www.legalservicesindia.com/article/article/suits-by-indigent-person-1279-
1.html

 http://www.shareyouressays.com/114363/legal-provisions-of-order-xxxiii-of-
code-of-civil-procedure-1908-c-p-c-india-suits-by-indigent-persons

 http://bombayhighcourt.nic.in/libweb/rules/OSrules/ch13.pdf

 https://sites.google.com/site/mmmlawreport/inheritance-
laws/thesuitwaslaidundertheprovisionsoforder33cpcinformapauparisbythesoleplain
tiffasanindigentperson.

Books referred

 Civil procedure code –  C.K.Takwani, fifth edition.

 The code of civil procedure – Tandon’s

 The code of civil procedure – M.P.JAIN

Acts referred
Code of civil procedure.