Suits by indigent persons

Suits by indigent persons

Order 33 provides for filing of suits by indigent persons. Persons who are too poor and cannot afford court fees are allowed under certain conditions to file suit without paying court fees. Courts fee is calculated under the Court Fees Act and it is paid at the time of presentation of plaint. The object behind this provision is to protect the bona fide claims of indigent persons so that they may not be precluded from exercising legal remedies owing to strained economic conditions.

Meaning of indigent person: Explanation I appended to Order 33 Rule 1 provides that a person is an 'indigent person' if:

(i) He is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit, or

(ii) Where no such fees is prescribed, when he is not entitled to property worth Rs. 1,000.

In both the cases, the property exempted from attachment in execution of a decree and subject matter of the suit should be excluded. [Explanation 1 to Rule 1]

Explanation II further provides that if any property is acquired by such person after presentation of application to sue as indigent person, such property will also be taken into consideration for deciding such application. Explanation III provides that if a person sues in representative capacity, his capacity will be determined with reference to his means in such capacity.

Supreme Court in Union Bank of India v. Khader International Constructions, (2001) 5 SCC 22 held that the word 'persons' under Rule 1 should be given extended meaning. A legal person is also covered under this provision. Therefore, a company can also maintain a suit under this provision.

Procedure for instituting pauper suit

Order 33 lays down following procedure to be followed where suit is to be instituted by indigent person:

(a) Contents of application: Rule 2 requires the indigent to file an application to sue as indigent person containing following particulars:

(i) Particulars required in regard to plaint in suits.

(ii) A schedule for any movable or immovable property belonging to the applicant with estimated value thereof.

(ii) Signature and verification as required under Order 6 Rule 14 and 15.

Such application shall be presented by the applicant to the court in person unless exempted by the Code or if there are two or more plaintiffs any of them can present the application. [Rule 3].

(b) Inquiry [Rule 1-A] and examination [Rule 4]: The chief ministerial officer of the court may conduct an inquiry as to the means of the applicant [Rule 1A] and the court may examine the applicant regarding the merits of the claim and property of applicant [Rule 4].

(c) Notice [Rule 6] and Hearing [Rule 7]: The court shall issue notice to the opposite party and Government pleader. The date shall be fixed for receiving evidence as the applicant may adduce in proof of his indigency. The court shall then examine the witnesses, if any, produced by either party, hear their arguments and either allow or reject the application [Rule 7].

(d) Rejection of application [Rule 5]: Rule 5 lays down the following grounds when the court shall reject an application to sue as indigent person:

• (a) Where it is not framed and presented in the manner prescribed by Rule 2 and 3.
• (b) Where the applicant is not an indigent person.
• (c) Where he has, within two months next before the presentation of application, disposed of any property fraudulently or in order to be able to apply for permission to sue as 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, he would be entitled to sue as indigent person.
• (d) Where his allegations do not show a cause of action.
• (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.
• (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.
• (g) Where any other person has entered into agreement with him to finance the litigation.

(e) Procedure when application is rejected: Where the court rejects application to sue as indigent, on any of the grounds mentioned in Rule 5, it will grant time to the applicant to pay court fees [Rule 15-A). The order of rejecting of such application will be a bar on subsequent application to sue as pauper but does not debar him from suing in an ordinary manner on payment of court fees and costs incurred by opposite party in opposing the application [Rule 15]. An order rejecting an application to sue as indigent person is appealable [Order 43 Rule 1(na)].

(f) Procedure where permission is granted: Rule 8 provides that where application to sue as indigent is granted, it shall be deemed to be a plaint in the suit and shall proceed in the ordinary manner and the plaintiff will not have to pay court fees. The court may provide him a pleader if he is not represented by the pleader [Rule 9A] and other free legal aid and services as may be required by him [Rule 18].

(g) Revocation of permission [Rule 9]: The court may, on application by the defendant or Government pleader, revoke permission granted to plaintiff in following cases:

• Where he is guilty of vexatious or improper conduct in course of suits, or
• Where his means are such that he ought not to continue to sue as an indigent person.
• Where he has entered into an agreement under which another person has obtained an interest in the subject-matter of suit.

(h) Procedure after conclusion of trial: Following procedure is to be followed after the conclusion of trial:

• (a) Where indigent person succeeds: Under Rule 10, where the plaintiff succeeds in the suit, the court shall calculate the amount of court fees and costs and the State Government shall recover from party as ordered by the court such costs and the Government shall have first charge on the subject-matter of suit,
• (b) Where indigent person fails: If plaintiff fails due to his own default or the suit abates, the court shall order him to pay the court fees and costs [Rule 11 and 11A). In case of abatement, the fees will be recovered out of the estate of the deceased plaintiff.

Realization of court fees as arrears of land revenue: Rule 14 provides that where an order is made under Rule 10, 11 or 11A, the court shall forward the copy of decree to collector who may recover the court fees from the person or his property as arrears of land revenue.