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This article is written by Yashika Kapoor, pursuing Certificate Course in Advanced Civil Litigation from LawSikho

Introduction

Taking into consideration the poverty rate of India, it is quite challenging for the deprived section of society to institute a case in court and bear all the litigation expenses. But simply saying that these vulnerable people don’t stand a chance in court, is not the solution. One such solution is enshrined under Article 39A of the Indian Constitution that protects the interests of vulnerable segments of society. It provides free legal aid to the poor and weaker sections of society and ensures justice for all. Besides Article 39A, Articles 14 and 22 (1) of the Indian Constitution provide that it is obligatory on the part of the State to ensure equality before the law and provide a legal system that aims at promoting justice.

The dictionary meaning of the word ‘indigent person’ refers to a person who is suffering from extreme poverty, impoverishment, or one who lacks the basic resources required in normal life. In legal parlance, an indigent person does not possess the financial capacity to pay the court fee. With the motive of providing justice to such individuals, provisions under Order 33 of the Code of Civil Procedure, 1908 were introduced. Any person who wants to represent as an indigent person is required to file an application before the competent court wherein he declares himself to be an indigent person. If the court is satisfied with such an application and agrees to the fact that such person has no means to pay the court fee, then the court will declare such person as an indigent person. Primarily, before the introduction of the expression “indigent person”, the term “pauper” was used to denote the underprivileged section of society. However, the latter got substituted by the term “indigent person.”

  • Rule 1- 18 of Order XXXIII of the Code of Civil Procedure deals with the suits filed by indigent persons. 

Who is an indigent person?

As soon as a civil suit is filed in the court, the plaintiff(s), at the time of filing their plaint, are required to submit the requisite court fees as directed by the Court Fees Act, 1870. However, Order XXXIII of the Code of Civil Procedure saves indigent persons by way of discharging them from the liability to pay the required court fees. It then allows such individuals to institute the suit in forma pauperis which is subject to some conditions as postulated under the Rule 1 of Order XXXIII of CPC. 

Discussing the definition of an indigent person in the light of  Union Bank of India v. Khader International Construction

The Hon’ble Supreme Court in Union Bank of India v. Khader International Construction discussed the definition of an indigent person. It was observed by the court 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 plaintiff in such a suit. In case 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.

A.A. Haja Muniuddin v. Indian Railways

In A.A. Haja Muniuddin v. Indian Railways, the court held that “Access to justice cannot be denied to an individual merely because he does not have the means to pay the prescribed fee.”

  • Rule1 gives us the definition of an indigent person. Any person who does not possess sufficient means to pay the requisite fee as prescribed by the Court Fee Act. However, Rule 1 also states that while considering sufficient means, the valuation of the property possessed by an indigent person will be exempted from attachment in execution of a decree and the subject matter of the suit. Such exempted property is the basic need of living for the individuals. Thus, as per law, it is not permitted to be attached. 
  • In cases where no such fee is prescribed by the Court Fee Act and if the applicant does not possess property worth one thousand rupees or where the cost of the property is less than one thousand rupees, then in such case, the person will be considered as an indigent person. However, this rule has the same exception as mentioned above. It states that while calculating the valuation of the property, Section 60 of the Code of Civil Procedure has to be kept in mind.

Following properties are exempted and must not be attached while calculating the valuation of the property possessed by the indigent person:

(a) The necessary wearing apparel, cooking vessels, beds;

(b) tools of artisans, agriculturist; 

(c) houses and buildings belonging to an agriculturist, labourer or a domestic servant;

(d) books of account;

(e) a mere right to sue for damages;

(f) any right of personal service;

(g) stipends and gratuities allowed to pensioners; 

(h) the wages of labourers and domestic servants;

(i) salary to the extent of the first four hundred rupees and two-third of the remainder in the execution of any decree other than a decree for maintenance: 

(ia) one-third of the salary in the execution of any decree for maintenance; 

(j) the pay and allowances of persons to whom the Air Force Act, 1950 or the Army Act,; 1950 or the Navy Act (62 of 1957), applies; 

(k) compulsory deposits and sums to which Provident Funds Act, 1925;

(ka)  deposits and sums to which the Public Provident Fund Act applies; 

(kb) all money payable under a judgment debtor’s policy of insurance; 

(kc) the interest of a lessee of a residential building; 

(l) any allowance forming part of the emoluments of any government servant; 

(m) an expectancy of succession by survivorship or other merely contingent or possible right or interest;

(n) a right to future maintenance; 

(o) any allowance declared by any Indian law to be exempt from liability to attachment or sale in execution of a decree; and 

(p) where the judgment-debtor is a person liable for the payment of land revenue; any movable property which, under any law for the time being applicable to him, is exempt from sale for the recovery of arrears of such revenue.

Note: While deciding whether a person is indigent or not, any property which is acquired/purchased/sold by the indigent person after presenting his application in the competent court for seeking permission to sue as an indigent person, and if such exchange of property is done before the court makes a decision on the application, then in such case, the properties so acquired/purchased/sold are mandatorily required to be taken into account while deciding the question of whether or not an applicant is an indigent person.

Legal representative as an indigent

In Lakshmi v Vijaya Bank, R.V. Revanna filed a petition under Order 33 Rule 1 and Rule 7 wherein he represented himself to be an indigent person. The respondent contended the petitioner to be an indigent person and questioned his indigency. Before the cross-examination of the petitioner took place, he died leaving behind his wife and children. Thereafter an application was filed by the petitioner’s wife to permit them to file the suit as a legal representative. The trial court observed that in case of the death of the applicant, the legal representatives won’t be permitted to substitute the indigent person as the right to sue as an indigent person is a personal right. However, the high court admitted the application filed by the legal representative and allowed them to file the petition as indigent persons. 

Inquiry into the means of an indigent person 

Rule 1A of Order 33 states that the Chief Ministerial Officer of the court has the authority to do an inquiry. The inquiry is conducted in the first instance to know if an applicant is an indigent person or not. It is upon the discretion of the court whether to accept the report submitted by such an officer or make an inquiry.

Procedure to file a suit as an indigent person 

Before filing a suit as an indigent person begins, it is important to add all the relevant contents in the application seeking permission to be an indigent person [Rule 2]. As per Rule 2 of Order XXXIII, the application must include the particulars similar to what is mentioned in the plaint and all movable or immovable properties of the indigent person/applicant along with its estimated value. 

The indigent person/applicant shall himself in person present the application before the court. In case, such a person is exempted from appearing in the court, an authorized agent may present the application on his behalf. In certain circumstances where there are two or more plaintiffs, the application can be presented by any of them. [Rule 3]. The suit begins as soon as the application to sue as an indigent person is duly presented before the court. Subsequently, the indigent person/applicant is examined by the court. However, if the applicant is being represented by his agent, then in such a case, the court may examine the applicant by the commission [Rule 4]

Rejection of application 

As per Rule 5 of Order XXXIII of CPC, the court will prima facie reject an application seeking permission to sue as an indigent person in the following cases:

  1. In case when the application is not framed and presented in the prescribed manner. Here, the term ‘prescribed manner’ implies that the application must abide by Rule 2 and Rule 3 of Order XXXIII. Rule 2 and Rule 3 deal with the contents of the application and its presentation respectively. 
  2. The application can be rejected by the court in case the applicant is not an indigent person. 
  3. The application can be rejected by the court when the applicant has fraudulently disposed of any property within two months before the presentation of the application. It can also be rejected when the applicant dishonestly applies only with the motive of just seeking permission from the court to sue as an indigent person. 
  4. The court possesses the power to reject the application filed by an indigent person in an instance where there is no cause of action.
  5. In case, where the applicant has entered into an agreement with any third party and such agreement pertains to the subject matter of the suit wherein the other party (other than the applicant) obtains interest, then, it is one of the reasons for rejection of the application. It shows the applicant’s intention to defraud the court. 
  6. Rejection of application is done when the allegations indicate that the suit is barred by any law.
  7. Rejection of application is done in cases where any other individual enters into an agreement with the applicant to help him financially in the litigation. 
  • The Hon’ble Supreme Court in ML Sethi v. RP Kapoor observed that the provisions of Order 11 Rule 12 involving the discovery of documents would apply to proceedings under Order XXXIII of the Code of Civil Procedure.
  • In Dhanalakshmi v. Saraswathy case, the plaint was found to be undervalued. So, it was returned for presentation in the court along with proper valuation and court fee. A time of one month was granted for doing so and the plaintiff filed the plaint within the stipulated period. Subsequently, the plaint was presented in the Sub-Court along with a petition seeking leave to sue as indigent persons to which the court observed that though the petition was filed under Order XXXIII Rule 1, one cannot say that the application filed under Rule 2 seeking permission to file the suit as indigent persons might not be rejected as provided in Rule 5 of Order XXXIII CPC. A similarity was drawn between Order XXXIII Rule 5 CPC and Order VII Rule 11 CPC. While Order VII Rule 11 is used in the rejection of plaint, Order XXXIII Rule 5 deals with the rejection of an application filed for permission to sue as indigent persons. 
  • Order 33 Rule 6 provides that the court is required to issue a notice to both the opposite party and the Government pleader. Following which a day is fixed on which evidence is received. On such a day, the applicant presents in the form of proof about his indigency. The opposite party or the Government Pleader can present their evidence opposing the applicant’s indigency. 
  • Order 33 Rule 7 provides for the procedure to be followed at hearing of the application. The court shall examine the witnesses (if any), produced by both the parties and hear arguments on the application or evidence (if any) admitted by the court. Subsequently, the court will either allow the application or reject it.
  • Order 33 Rule 8 explains the procedure to be followed after the admission of the application. The application after being admitted has to be numbered as well as registered. Such an application will be considered as a plaint in a suit. Subsequently, such a suit shall proceed in the same manner as an ordinary suit does. 
  • Order 33 Rule 9 states that the court has an option to revoke the permission granted to the plaintiff to sue as an indigent person. The court can utilise this discretionary power on receiving the application by the defendant or by the government pleader, in the following circumstances:
  1. Where the applicant is guilty of vexatious or improper conduct in the course of the suit; or
  2. Where the applicant’s means are such that he will not continue to sue as an indigent person; or
  3. Where the applicant has entered into an agreement under which another person has obtained an interest in the subject matter of the suit. 
  • The Kerala High Court in R. Jayaraja Menon v. Dr. Rajakrishnan And Anr., while deciding upon an application concerning the withdrawal of permission to sue as an indigent person observed that Rule 9 of Order 33 provides for a situation where the plaintiff, who was initially permitted to sue as an indigent person, ceases to be an indigent person after the suit is filed. In case a plaintiff ceases to be an indigent person, the court shall compel him to pay the court fee that he would have paid if he had not been allowed to sue as an indigent person. It is so plainly a part of an order under Rule 9 of Code directing the plaintiff to pay the court fee that he would have paid if he had not been allowed to file as an indigent person from the outset.
  • Rule 9A of the Code provides that the court will assist the indigent person by assigning him a pleader. A pleader is a person who is entitled to appear and plead on behalf of other persons in the court.

Costs associated with the suit

Order XXXII Rule 16 of CPC states that the costs in the suit will include the costs of an application to sue as an indigent person as well as the cost of inquiry into indigency.

  1. When an indigent person succeeds: According to Rule 10 of Order XXXIII, where the plaintiff (indigent person) succeeds in the suit, the court shall calculate the amount of court fees and costs and recover the same from the plaintiff in the manner as if he had not been permitted to sue as an indigent person. In case the plaintiff (indigent person) fails to pay the amount, then in such case, the amount shall be recoverable by any such party that was ordered by the decree. 
  2. Where an indigent person fails: According to Rule 11 and Rule 11-A Order XXXIII where the plaintiff (indigent person) fails or the permission granted to the indigent person is withdrawn under Rule 9A, or where the suit is withdrawn or dismissed, the court shall in such case either order him (plaintiff) or a co-plaintiff to pay court fees and costs in the manner as if he had not been permitted to sue as an indigent person. 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.
  3. The Hon’ble Supreme Court in Union Bank of India v. Khader International Construction, held that Order 33 CPC is an enabling provision that allows the indigent person to file a suit without paying the court fee at the initial stage. In case the plaintiff succeeds in the suit, the court calculates 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. However, if 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. 
  4. 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.
  5. According to Rule 12 of Order XXXIII, the state government possesses the right to apply to the court to pass an order concerning payment of court fee to be paid under Rule 10. 
  6. Rule 13 deals with cases where the state government shall be deemed to be a party to suit. 
  7. Rule 14 provides that the court shall recover the court fee by forwarding the order or decree to the collector who shall then collect the fee in the manner as if it were an arrear of land revenue. 
  8. In case if the application to sue as an indigent person is refused, he shall still possess the right to file a suit in an ordinary manner. However, such a person shall be denied to file an application of similar nature in respect of the same matter [Rule 15]. 
  9. Rule 17 provides that any defendant (indigent person) who wishes to file a set-off or counterclaim shall be permitted to do so. 
  10. Rule 18 states that apart from Order XXXIII of the Code, the state or the Central Government may make additional provisions for free legal services in respect of indigent persons. 

Conclusion

It has been observed that Order XXXIII, permits the destitute, impoverished, and downtrodden, who meet the criteria of an indigent person as provided by Order XXXIII, to seek justice by exempting them from paying the required Court fees. Order XXXIII further authorizes such poor people to file a suit in their own name. The court at the outset itself while deciding the application must take into account the persons having sufficient means and outrightly reject them to sue as indigents. The permission to file suit as indigent persons must be carefully given to those who face financial constraints and lack basic resources as access to justice can sometimes also be in the form of injustice. 

There is a lack of awareness among people regarding such provisions as well as the availability of free legal aid services. Hence, efforts must be made by every individual to sensitise the vulnerable sections of society regarding free legal aid services. Moreover, it is believed that aggrieved people would suffer more as free legal aid services would compromise quality services by the advocates. No doubt, the same is true in some cases where the advocates appointed by district legal services authorities are unresponsive and dispassionate, however, the same could be resolved by reporting the grievance to the concerned authority/department.  

References 


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