ORDER XXXIII CPC- PROVISIONS FOR SUIT BY Indigent personS
In the Courts of law, while filing suits of various nature,
in terms of Courts Fee Act the ad valorem
court fee is payable. However, a pauper or a person who have no means to pay
the court fee, the provisions are contained in Order XXXIII of Code of Civil
Procedure for enabling such person to prefer a suit without paying court fee.
However, inquiry in this regard has to be conducted and only upon such inquiry
if it is evident that the person raising plea by way of suit is indeed a
pauper, then, such person or persons may be allowed to prefer a suit as
indigent person.
The cornerstone of the Indian
Constitution is equality and also to accord leverage to underprivileged so that
access to legal recourse are not denied to them. In this context reference is necessary to free legal aid as enshrined in
the Article 39- A of Constitution of India, entailing free Legal Aid and
Equal Justice. What is significant in the context is that the provision for
indigent person not only enables such person to have access to legal recourse,
but at the same time, the aspect of revenue is also not compromised, in as much
as, Order XXXIII itself while according opportunity to a person without
adequate means to file a suit in courts of law, without paying court fees, also
stipulates that if the indigent person is successful in a lis, the state can
recover the court fees from the defendants or from the subject matter of the
suit.
The term ‘indigent person’ finds
mention in Order XXXIII, Rule
1 of the Code of Civil Procedure. The indigent person shall be the
one who does not have sufficient means to pay the court fees as may be at the
time of filing of a suit. The indigent person, in order to conform to the
provision shall have no property worth ₹ 1,000,
excluding bare essential items for livelihood. Therefore, by necessary
implication, if a person is unable to pay court fees and lacks properties of
substantial value, he may be declares as indigent person.
Before going further, the provision of Order XXX, Rule 1
may be reproduced herein:
FILING
OF SUIT BY INDIGENT PERSON
Order XXX Rule 1 of CPC
1. Suits may be instituted by indigent
person.
Subject to the following provisions, any suit may be instituted by
an indigent person.
Explanation I- A person
is an indigent person,-
(a) 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
(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 execution of a decree, and the subject-matter of the suit.
Explanation II-
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.
Explanation
III-
Where
the plaintiff sued in a representative capacity, the question whether he is an
indigent person shall be determined with reference to the means possessed by
him in such capacity.
Inquiry into the
means of an indigent person
The Rule 1A of Order XXXIII CPC stipulates that inquiry shall have to be
conducted for ascertaining a person to be an “indigent person” and the inquiry shall relate to whether a person
is indeed an indigent person. The report is solicited in this regard and court
may otherwise direct inquiry to be conducted or report submitted by the
concerned officer may be accepted and/or finding by the courts may itself
undertake the inquiry.
Contents of
application
The Rule 2 of the Code contains
specifics in this regard.
Every application for permission to sue as an indigent person
shall contain the particulars required in regard to plaints in suits; a
schedule of any movable or immovable property belonging to the applicant, with
the estimated value thereof, shall be annexed thereto; and it shall be signed
and verified in the manner prescribed for the signing and verification of
pleadings.
The Rule
2 includes the procedure for filing of a suit. An indigent person is required
to prefer an application before a court in
order to seek permission for the same, without paying court fees. The applicant
shall have to render complete description of the applicant and his financial
status so as to demonstrate the inability of such person to pay court fee. The
applicant is also required to specify a schedule of its assets-both moveable
and immoveable. The plaint is also required to be filed in an ordinary manner.
Presentation of
application
The Rule 3 of the Code prescribes that notwithstanding anything
contained in these rules, the application shall be presented to the Court by
the applicant in person, unless he is exempted from appearing in Court, in
which case the application may be presented by an authorized agent who can
answer all material questions relating to the application, and who may be
examined in the same manner as the party represented by him might have been
examined had such party attended in person:
Provided that, where there are more
plaintiffs than one, it shall be sufficient if the application is presented by
one of the plaintiffs.
Examination of applicant by the Court
The Rule 4 contains
details in this regard. The rule contains as under:
(1) Where the application is in proper form and duly presented,
the Court may, if it thinks fit, examine the applicant, or his agent when the
applicant is allowed to appear by agent, regarding the merits of the claim and
the property of the applicant.
(2) If presented agent, Court may order applicant to be examined
by commission—
Where the application is presented by an agent, the Court may, if
it thinks fit, order that the applicant be examined by a commission in the
manner in which the examination of an absent witness may be taken.
Rejection of application.
The Court shall reject an application under Rule 5 of the Code, for
permission to sue as an indigent person-
(a) where
it is not framed and presented in the manner prescribed by rules 2 and 3, or
(b) where
the applicant is not an indigent persons, or
(c) 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 no application shall be rejected if, even after the
value of the property disposed of by the applicant is taken into account, the
applicant would be entitled to sue as an indigent person, or
(d) where
his allegations do not show a cause of action, or
(e) 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
(f) 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
(g) where
any other person has entered into an agreement with him to finance the
litigation.
Notice of day
for receiving evidence as regards applicant being indigent
Under Rule 6, if the Court sees no reason to reject the
application on any of the grounds stated in rule 5, it shall fix a day (of
which at least ten day’s clear notice shall be given to the opposite party and
the Government pleader) for receiving such evidence as the application may
adduce in proof of his being indigent and for hearing any evidence which may be
adduced in disproof thereof.
Procedure at hearing: The Rule 7 contains the provision in this regard.
(1) On the day so fixed or as soon thereafter as may be
convenient the Court shall examine the witnesses (if any) produced by either
party, and may examine the applicant or his agent, and shall make a full record
of their evidence.
(1A) The examination of the witnesses
under sub-rule (1) shall be confined to the matters specified in clause (b),
clause (c) and clause (e) of rule 5 but the examination of the applicant or his
agent may relate to any of the matters specified in rule 5.
(2) The Court shall also hear any argument which the parties may
desire to offer on the question whether, on the face of the application and of
the evidence (if any) taken by the Court under rule 6 or under this rule, the
applicant is or is not subject to any of the prohibitions specified in rule 5.
(3) The Court shall then either allow or refuse to allow the
applicant to sue as an indigent person.
Procedure if application admitted
The Rule 8 contains details in this regard. Where the application
is granted, it shall be numbered and registered, and shall be deemed the plaint
in the suit, and the suit proceed in all other respects as a suit instituted in
the ordinary manner, except that the plaintiff shall not be liable to pay any
court-fee [or fees payable for service of process] in respect of any petition,
appointment of a pleader or other proceeding connected with the suit.
Withdrawal of permission to sue as an indigent person
As per rule 9 of the Code, the Court may, on the application of
the defendant, or of the Government pleader, of which seven days clear notice
in writing has been given to the plaintiff, order that the permission granted
to the plaintiff to sue as an indigent person be withdrawn-
(a) if
he is guilty of vexatious or improper conduct in the course of the suit;
(b) if it appears that his means are such that he ought not to
continue to sue as an indigent person; or
(c) if he has entered into any agreement with reference to the
subject-matter of the suit under which any other person has obtained an
interested in such subject-matter.
Costs when indigent person
succeeds.
As per rule 10 of the Code, 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 any party
order by the decree to pay the same and shall be a first charge on the
subject-matter of the suit.
Procedure where indigent person
fails.
The Rule 11 prescribes in what manner a 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 or dismissed,-
(a) because the summons for the defendant to appear and answer
has not been served upon him in consequence of the failure of the plaintiff to
pay the court-fee or postal charges (if any) chargeable for such service or to
present copies of the plaint or concise statement, or
(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-fees which would have been paid
by the plaintiff if he had not been permitted to sue as an indigent person.
Procedure where indigent persons suit abates.
The Rule 11 A contains that the suit abates by reason of the death
of the plaintiff or of any person added as a co-plaintiff, then, the Court
shall order that amount of court-fees which would have been paid by the
plaintiff if he had not been permitted to sue as an indigent person shall be
recoverable by the State Government from the estate of the deceased plaintiff.
State Government may apply for payment of court-fees.
The Rule 12 of the Code is significant, in as much as, the State
Government shall have the right at any time to apply to the Court to make an
order for the payment of court-fees under rule 10, rule 11 or rule 11A.
State Government to be deemed a
party
As per rule 13 of the Code, all matters arising between the State
Government and any party to the suit under rule 10, rule 11 rule 11A or rule 12
shall be deemed to be questions arising between the parties to the suit within
the meaning of Section 47.
Recovery of amount of court-fees.
Where an order is made under rule 10, rule 11 or rule 11A, the
court shall forthwith cause a copy of the decree or order to be forwarded to
the Collector who may, without prejudice to any other mode of recovery, recover
the amount of court-fees specified therein from the person or property liable
for the payment as if it were an arrear of land revenue. The provisions finds
mention in Rule 14.
Refusal to allow applicant to sue as indigent person to bar subsequent
application of like nature
An order refusing to allow the applicant top sue as indigent person
shall be a bar to any subsequent application of the like nature by him in
respect of the same right to sue; but the applicant shall be at liberty to
institute a suit in the ordinary manner in respect of such right;
Provided that
the plaint shall be rejected if he does not pay, either at the time of the
institution of the suit or within such time thereafter as the Court may allow,
the costs (if any) incurred by the State Government and by the opposite party
in opposing his application for leave to sue as an indigent person. The
aforesaid stipulations are contained in rule 15 of CPC.
15A. Grant of time for payment of
court-fee.
The Court may grant time to the plaintiff for payment of court
fee, notwithstanding what are contained in rule 5, rule 7 or rule 15. The Court,
while rejecting an application under rule 5 or refusing an application under
rule 7, may grant time to the applicant to pay the requisite court-fee within
such time as may be fixed by the Court or extended by it from time to time; and
upon such payment and on payment of the costs referred to in rule 15 within
that time, the suit shall be deemed to have been instituted on the date on
which the application for permission to sue as an indigent person was
presented.
17. Defence by an indigent person
As per rule 17, any defendant, who desire to plead a set-off or
counter-claim, 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.
Power of Government to provide for free legal services to indigent
persons
The Rule 18 of the Code
prescribes this.
(1) 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.
(2) The High Court may, with previous approval of the State
Government, make rules for carrying out the supplementary provisions made by
the Central or State Government for providing free legal services to indigent
persons referred to in sub-rule (1), and such rules may include the nature and
extent of such legal services, the conditions under which they may be made
available, the matters in respect of which, and the agencies through which,
such services may be rendered.
Appeals by
Indigent Persons
The provision for appeal by an
indigent person is contained in Order XLIV of the CPC. As per
the said provision an indigent person may prefer an appeal without paying the
requisite court fees in a similar manner that of the filing of a suit. The
inquiry in appeal shall have to be conducted with regard to the appellant’s financial
status, and the courts may accord permission to file the appeal without payment
of Court fees However, in case, the court reject the application to prefer
appeal as an indigent person that the concerned person shall, have to pay the
court fees within stipulated time period. If fees are paid, the appeal may
proceed in an ordinary way a specified time. If the fees are paid within time,
the appeal may be proceeded with and in that event it will be construed that
fee is duly paid from inception.
JUDICIAL PRECEDENTS
1.
Sushil Thomas Abraham Vs. Skyline Build &
Ors(2019) 3 SCC 415 -Civil Appeal No.
117 of 2019 (Arising out of SLP (C) No. 19516 of 2014)
Order 33 Rule 7(3) empowers the court to either allow or
refuse to allow the applicant to sue as an indigent person. The Rule 9 of the
code empowers the court to withdraw the permission granted Under Rule 7(3) at
the instance of Defendant or State counsel, if any of the grounds set out in
Clauses (a) to (c) is made out. Order 33 Rule 11 as amended by the State of
Kerala inter alia provides that when
the Plaintiff is dispaupered, the
Court may order the Plaintiff to pay the requisite court fees within a time
fixed by the Court.
In the Sushil Thomas (Supra) it is held
that there is no bar in preferring appeal by the indigent person against the
order by the trial court under Order 33 Rule 1 of the Code and an
application/appeal Under Order 44 Rule 1 of the Code before the Appellate Court
can be maintained. The recitation of Rule 3(1) and 3(2) of Order 44 is
categorical, in as much as inquiry can be conducted even at the appellate stage
as to whether the applicant is an indigent person or not?
It is relevant to point out that Clause (2) of Order 44
Rule 3 of the Code stipulates that if the applicant was declined the status of
an indigent person by the trial court in the suit, then, in such an event the
applicant in appeal is entitled to contend that he has become an indigent
person since the date of decree appealed from and, hence, he will be entitled
to prefer appeal as an indigent person. No doubt, the inquiry is required to be
conducted in this stage as well.
2.
M.
L. Sethi vs R. P. Kapur AIR 1972 SUPREME COURT 2379,
The
earlier judgment passed by the Supreme Court itself suggests that the
application filed by the pauper under the suit by indigent person should itself
be treated as suit and all the circumstances and procedure in an ordinary suit
shall apply to the application/suit filed by the indigent person.
In Vijay
Pratap Singh Vs Dukhharan Nath Singh & Anr [1962] S.C.R. Supp. 2,675 the Supreme Court has held that "the suit commences from the
moment an application for permission to sue in forma pauperis as required by Order 33 is presented." If that
be so, the provisions of rule 12 of Order 11 relating to discovery would in
terms apply to proceedings under Order 33.
There is also no reason why, if the provisions of Order 1, rule 10 relating to
additions of parties, of Order 9 dealing with appearance of parties and
consequence of non- appearance, and of Order 39 relating to temporary
injunctions would apply to proceeding under Order 33, the provisions in Order
11 dealing with discovery of documents should not apply to, such proceedings.
COMPANY CAN SUE AS INDIGENT PERSON
3. Union Bank of
India v. Khader International Construction- Appeal (civil) 943 of 1993 Supreme Court
The aforesaid judgment reiterates
that Order XXXIII of CPC is an
enabling provision and it accords rights to the indigent person to prefer a
suit without paying court fee , albeit in Case of dismissal of the suit, the
state shall be entitled to recover the court fees from the plaintiff.
The Supreme Court referred to Lord Selborne in Pharmaceutical Society v. London and Provincial Supply
Association, 5 Appeal Cases 857, observed :
"There
can be no question that the word ’person’ may and ......prima facie does, in a
public statute include a person in law; that is , a corporation, as well as a
natural person. But although that is a sense which the word will bear in law,
and which as I said, perhaps ought to be attributed to it in the construction
of a statute unless there should be any reason for a contrary construction, it
is never to be forgotten, that in its popular sense and ordinary use it does
not extend so far”.
"
Therefore, 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 filing a suit and
this being a benevolent provision, it is to be given an extended meaning.
Therefore, we are of the view that a public limited company, which is otherwise
entitled to maintain a suit as a legal person, can very well maintain an application
under Order XXXIII, Rule 1 CPC. We hold that the word ’person’ mentioned in
Order XXXIII includes not only a natural person but other juridical persons
also”
4. Smt. Lakshmi v. Vijaya Bank AIR
2011 KARNATAKA 89, 2011
The Karnataka High Court has held
that the right to sue as an indigent person being a personal right cannot be extended to the
legal heirs of indigent person. The legal heirs may continue with the suit, but
not as indigent person, but as an ordinary suit by and ordinary person
and thus requisite court fees shall have to be paid on the plaint.
5. Sumathy Kutty
v. Narayani AIR 1973 Ker 19
The Kerala High Court has held
that the real test for ascertaining a person to be indigent shall be to the
effect that if the said person is able to liquidate his assets without any
undue hassles or without delay, then he could not be held as indigent. Therefore,
necessary inquiry is required to be conducted in this regard to verify the
correctness of the assertions of the plaintiff who preferred the suit as
indigent person.
As is evident from the aforesaid
discussion and legal precedents, the provision for indigent person in the Code
of Civil Procedure is an enabling provision so as to ensure that access to law
is accorded to all strata of society, however, in order to be eligible to it, there
are stringent prescription and only after inquiry to that effect and after
recording satisfaction as regards the plaintiff or appellant as the case may
be, being indigent, the application to file suit as indigent person could be allowed.
However, after the disposal of the case, the recovery of court fee and its
mechanism is also provided for sp that revenue to the state is not lost while
ensuring equity, fair play and opportunity to all.
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Anil
K Khaware
Founder
& Senior Associate
Societylawandjustice.com
