SUITS BY INDIGENT PERSONS

This article is written by Ab Wahid Lone of 10^th Semester of Central University Of Kashmir, an intern under Legal Vidhiya

Abstract

India has a high percentage of poverty, which makes it challenging for the underprivileged segment of society to bear the costs associated with filing a lawsuit. However, it is not the solution to state that these helpless individuals cannot succeed in court. An indigent person is someone who lacks the resources to pay the court charge as defined by legal terminology. The Code of Civil Procedure, 1908, has developed measures under Order 33 to provide justice to such people. This paper analyses the Order 33 of the Civil Procedure Code, 1908. Identifying and defining an indigent person in the Civil Procedure Code (CPC) is crucial for ensuring fair treatment and facilitating legal representation within the judicial process. This research paper aims to explore the legal understanding of who is considered an indigent person under the CPC by analyzing the criteria and provisions outlined within the code. By examining relevant case law, this paper seeks to elucidate the importance of the indigent person concept in upholding the principles of equality and justice in the civil legal system.

Keywords: Indigent person, Code of Civil Procedure, Order 33, Legal Aid, Court Fees

Introduction

Access to justice is a fundamental right, but it can be challenging for India’s impoverished people to seek justice in court and bear all the litigation expenses. However, simply stating that these vulnerable individuals don’t stand a chance in court is not the solution. Fortunately, Article 39A of the Indian Constitution protects the interests of the weaker sections of society by providing free legal aid, ensuring justice for all. Additionally, Articles 14 and 22 (1) of the Constitution require the state to ensure equality before the law and provide a legal system that promotes justice.

The provisions for Indigent persons were instituted in the Code of Civil Procedure, 1908, allowing poor people to seek justice without paying any court fees. Order 33 of the Code of Civil Procedure deals with the Provisions of Indigent Person. Generally, an individual who files a lawsuit must pay a prescribed court fee. However, in some cases, the person may be too poor to pay the fee. In such cases, the Code of Civil Procedure, 1908, allows the person to file the lawsuit without paying the court fee and proceed with the case as a pauper or an indigent person, subject to the conditions provided under the same provision of the Code of Civil Procedure, 1908.

The word ‘indigent person’ refers to someone extremely poor, lacking the basic resources required in normal life, or does not have the financial capacity to pay the court fee. In order to provide justice to such individuals, provisions under Order 33 of the Code of Civil Procedure, 1908, were introduced. To represent oneself as an indigent person, one needs to file an application declaring themselves as such. If the court is satisfied with the application and agrees that the person cannot pay the court fee, then the person will be declared indigent. The term “pauper”, used to denote the underprivileged section of society, was later replaced by the term “indigent person”. Rule 1- 18 of Order 33 of the Code of Civil Procedure deals with the suits filed by indigent persons. 

Who is an indigent Person

An individual is considered an “indigent person” if they do not possess sufficient means to pay the fee prescribed by law for the plaint in such a lawsuit or are not entitled to property worth one thousand rupees in the case where no such fee is prescribed. In both cases, the property is exempt from attachment in the execution of a decree, and the subject matter of the suit should be excluded^[1]. Any property acquired by the applicant after applying for permission to sue as an indigent person should also be considered for deciding whether the applicant is indigent^[2].  The word “person” includes juristic person.^[3]

According to the Hon’ble Supreme Court ruling in Union Bank of India v. Khader International Construction^[4], an indigent person is someone who doesn’t have enough money (except for property that is exempt from attachment in a lawsuit or the subject matter of the case) to pay the fee required by law for the plaintiff in such a lawsuit. If no such fee is prescribed, an indigent person is someone who doesn’t own property worth more than one thousand rupees (excluding property exempt from attachment in a lawsuit or the subject matter of the case).

Order 33 and its Constituents

Order 33 is intended to help people with weak financial positions access justice by allowing them to file suits and appeals without paying court fees. Unfortunately, in India, the reality is that justice is still a distant dream for a large segment of the population. Despite the provisions that allow people to file cases without sufficient means being in the statute book for many years, they have not been enforced effectively. The truth is that justice is only accessible to those who have enough money to pay for hefty court fees, legal assistance, and other expenses. It is essential to bridge the gap between enacting and enforcing laws to ensure that justice is accessible to everyone, regardless of their financial status.

A plaintiff suing in a civil court must pay the court fees prescribed by the law for the plaint and subsequent proceedings in the suit. These fees are outlined in the Court-Fees Act (7 of 1870). However, some individuals may not have the financial means to pay court fees. To address this, Order 33 of the Code of Civil Procedure was established to allow individuals experiencing poverty to seek justice without having to pay court fees. This order exempts indigent individuals from paying court fees at the outset and permits them to file a suit or appeal in forma pauperis. The purpose of Order 33 is to ensure that those who cannot afford court fees have equal access to justice.

Constituents

Order 33 consists of several key constituents that play a pivotal role in facilitating indigent persons’ legal representation and participation in civil litigation. These constituents include:

1. Application for Permission: Indigent persons can apply to the court for permission to sue or defend a case without bearing the financial burden of legal proceedings.

2. Examination of Application: The court reviews the application and the applicant’s financial situation to determine whether they qualify as indigent. The court considers factors like the case’s merits before making a decision.

3. Appointment of a Pleader: If the court grants permission, it may appoint a lawyer to represent the indigent person throughout the case, ensuring they have legal representation.

4. Waiver of Court Fees: Indigent persons are exempt from paying court fees and other litigation-related expenses, relieving them of the financial burden.

5. Recovery of Costs: If the indigent person wins the case and is awarded costs, the government may recover these costs from the opposite party, ensuring the government does not bear the financial burden entirely.

The aim of Order 33 is to ensure equal access to justice and protect the rights of individuals who cannot afford legal expenses.

Object

Order 33 is a provision that allows indigent persons to file and pursue a legal suit without having to pay court fees. Usually, a plaintiff must pay court fees as per the Court Fees Act during the presentation of a plaint. However, some individuals may not have the financial resources to pay the court fees. In such cases, Order 33 exempts them from paying the court fee initially and allows them to proceed with the lawsuit in forma pauperis, provided they meet certain conditions specified in the order^[5].

The primary objective of Order 33 is to serve a triple purpose, which includes

1. protecting the legitimate claims of an indigent person,
2. safeguarding the interests of revenue and
3. protecting the defendant from harassment.

In order to achieve its intended purpose, the provisions of Order 33 must be properly construed. This will ensure that poor and indigent litigants can seek justice without paying court fees^[6].

It is important to note that an application to sue as an indigent person should not be rejected merely because the applicant did not sign or verify it. As long as there is substantial compliance with the provisions of Order 33, the court must grant relief to the plaintiff and allow them to sue as an indigent person.

Legal representative as an indigent

The case of Lakshmi v Vijaya Bank^[7] involved a petition filed by R.V. Revanna under Order 33 Rule 1 and Rule 7, claiming to be an indigent person. The respondent challenged the petitioner’s indigency. Before the petitioner could be cross-examined, he passed away, leaving behind his wife and children. The petitioner’s wife then filed an application to allow them to file the suit as legal representatives. The trial court held that the legal representatives cannot substitute an indigent person as the right to sue as an indigent person is personal. However, the high court allowed 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

In the first instance, the Chief Ministerial Officer of the court should make an inquiry into the means of the applicant. The report submitted by the officer will be reviewed by the court, which may also conduct its own inquiry if needed^[8]. The court may examine the applicant’s claim and property if the application is appropriately completed and represented. Once this is done, the court will issue a notice to the opposite party and the Government Pleader and set a date for evidence to be presented. On the given day, the court will hear the arguments of both parties and examine any witnesses produced. After considering all the evidence, the court will either approve or reject the application based on the case’s merits^[9].

Procedure to file a suit as an indigent person 

When applying for permission to sue as an indigent person, it is important to follow the proper filing process and provide the following details:

1. The necessary particulars that are required for filing a suit.

2. A list of any movable or immovable property that belongs to the applicant, along with its estimated value.

3. The application should be signed and verified as provided in Order 6 Rules 14 and 15^[10].

The applicant must present the application to the court in person unless otherwise exempted by the court^[11]. If there are two or more plaintiffs, then any one of them can present the application^[12]. The suit will commence from the time the application to sue in forma pauperis is presented^[13]. The court will then examine the applicant to determine their indigent status. However, if an agent represents the applicant, the court may choose to examine them through a commission instead^[14].

Rejection of application: Rule 5

The court will reject an application for permission to see you as an indigent person in the following cases:

1. If the application is not framed and presented in the prescribed manner,
2. If the applicant is not an indigent person,
3. If the applicant has disposed of any property fraudulently or gained permission to sue as an indigent person within two months before presenting the application;
4. If there is no cause of action,
5. If the applicant has entered into an agreement with reference to the subject matter of the suit under which another person has obtained an interest;
6. If the suit appears to be barred by law or
7. If any other person has agreed with the applicant to finance the litigation costs.

In the case of Dhanalakshmi v. Saraswathy^[15], the court found that the plaint had been undervalued and, therefore, returned it for proper valuation and payment of court fee. The plaintiff was given a month to comply with this requirement, and they filed the corrected plaint within the stipulated period. Later, the plaintiff presented the plaint to the Sub-Court with a petition seeking permission to sue as an indigent person. However, the court pointed out that even though the petition was filed under Order 33 Rule 1, it was possible that the application filed under Rule 2 seeking permission to file the suit as an indigent person could be rejected under Rule 5 of Order 33 CPC. The court also noted a similarity between Order 33 Rule 1 and Order 7 Rule 11, pointing out that while the latter was used to reject plaints, the former was used to reject an application filed for permission to sue as indigent persons.

Where permission is granted: Rules 8-9-A

If an application to sue as an indigent person is granted, it will be considered a plaint in the lawsuit and will proceed as usual, except that the plaintiff will be exempted from paying court fees or process fees. In case a pleader does not represent an indigent person, the court may assign one. Additionally, the Central or State Government can provide free legal aid and services to indigent persons to help them prosecute their cases. As an indigent person, a defendant can also plead set-off or counterclaim^[16].

Where permission is rejected: Rules 15-15-A

If a court rejects an application to sue as an indigent person, the applicant will be given time to pay the court fees^[17]. However, if an order is made refusing to allow the applicant to sue as an indigent person, they will not be able to make a similar application in the future. In this case, the applicant may still sue in the usual manner. Still, they will have to pay the costs incurred by both the Government Pleader and the opposing party for opposing the original application^[18].

Revocation of permission: Rule 9

The defendant or the Government Pleader may apply to the court to revoke permission granted to the plaintiff to sue as an indigent person in the following situations:

1. If the plaintiff engages in vexatious or improper conduct during the lawsuit.

2. If the plaintiff’s financial means are such that they should not be allowed to continue as an indigent person.

3. If the plaintiff has entered into an agreement where another person has obtained an interest in the subject matter of the lawsuit.

Costs associated with the suit

Under Order 33 Rule 16 of the CPC, the costs of an application to sue as an indigent person shall be the costs in the suits.

Recovery of court fees and costs

Where an indigent person succeeds— Where the plaintiff (indigent person) succeeds in the suit; according to Rule 10 of Order 33, if a plaintiff is allowed to sue as an indigent person, the court will calculate the amount of court fees and costs. The plaintiff will then have to pay this amount as if they were not permitted to sue as an indigent person. If the plaintiff fails to pay the amount, any party ordered by the decree may recover it.

Where an indigent person fails. —according to Rule 11 and Rule 11-A of Order 33, When an indigent plaintiff fails in a suit or the case abates, the court shall order them to pay court fees and costs.

The Hon’ble Supreme Court, in the case of Union Bank of India v. Khader International Construction, stated that Order 33 is a provision that allows a person who is unable to afford the court fees to file a lawsuit. If the plaintiff wins, the court will determine the amount of court fees that would have been payable if the plaintiff had not been allowed to sue as an indigent person. The state will then recover this amount from the party that is ordered to pay the same. However, if the lawsuit is dismissed, the state will recover the court fees from the plaintiff, which will be the first charge on the subject matter of the case.

Right of State Government

According to Rules 12 and 13 of Order 33, the State Government has the right to recover court fees and is deemed to be a party to the suit.

Realisation of court fees: Rule 14

If an indigent person wins a lawsuit, the state government can recover court fees from the party. The court fees will be recovered as per the direction mentioned in the decree, and it will be the first charge on the subject matter of the lawsuit. However, if the indigent person loses the lawsuit, they will have to pay the court fees. In case the suit abates due to the death of a plaintiff, the court fees will be recovered from the estate of the deceased plaintiff.

Set-off or counterclaim

An indigent person may also plead set-off or file a counterclaim without paying court fees.

Appeal

According to Order 43 Rule 1, an order rejecting an application to sue as an indigent person is appealable.

Appeals by Indigent Persons

As per Order 44 Rule 1, A person who cannot pay the court fees for a memorandum of appeal can apply to appeal as an indigent person. Before the prayer is granted or refused, an inquiry, as prescribed in Order 33, will be conducted. However, if the appellant were allowed to sue as an indigent person in the trial court, there would be no need for a fresh inquiry if they file an affidavit stating that they continue to be indigent.

Conclusion

Summarizing up in Order 33, an indigent person is someone who cannot afford to pay the court fee when it is prescribed by law or does not own property worth more than one thousand rupees when such a fee is not prescribed. In either case, the property that is exempted from attachment in the execution of a decree and the subject matter of the suit is not taken into account when determining the financial worth or ability of the indigent person.

If a person fails to prove themselves as an indigent person, they are required to pay the court fee of the respective court, and any remaining damages will be borne by the State Government as if they had committed the wrong. However, if the indigent person wins the case, they cannot be held liable for any expenses, fees or damages.

There is a lack of awareness among people about the availability of free legal aid services and how to access them. It is important to educate the vulnerable sections of society about these services. Some people believe that free legal aid services may not provide quality services, but this is not true in all cases. If you face any issues with the quality of services provided by the advocates appointed by district legal services authorities, you can report your grievance to the concerned authority or department.

References:

1. C.K. Takwani, Civil Procedure with Limitation Act, 1963, Eastern Book Co., (9th ed ).
2. Analysis of Order 33 of CPC (suits by indigent persons) – iPleaders. https://blog.ipleaders.in/analysis-of-order-33-of-cpc-suits-by-indigent-persons/?amp=1 ( Last Visited 27 Oct. 2023)
3. Suits by the Indigent Persons under Order 33 CPC || Meaning, Object etc.||. https://www.lawnotes4u.in/suits-by-the-indigent-persons-under-order-33-cpc-meaning-object-etc/ ( Last Visited 28 Oct. 2023)
4. Mathai M. Paikeday Vs. C.K. Antony | Latest Supreme Court Judgments | Law Library | AdvocateKhoj. https://www.advocatekhoj.com/library/judgments/announcement.php?WID=1022 ( Last Visited 29 Oct. 2023)
5. Order XXXIII CPC ‘Suits By Indigent Persons | International Journal of Law Management & Humanities. https://www.ijlmh.com/wp-content/uploads/2019/03/Order-XXXIII-CPC-‘Suits-By-Indigent-Persons’.pdf ( Last Visited 29 Oct. 2023)
6.  http://www.bareactslive.com/ACA/ACT379.HTM#O11 ( Last Visited 230 Oct. 2023)
7. Suits by indigent persons & interpleader suits https://lawtimesjournal.in/suits-by-indigent-persons-interpleader-suits/#:~:text=Explanation I to Rule 1,the plaint in such suit.  ( Last Visited 30 Oct. 2023)

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^[1] Expln.I to R.1, Or 33.

^[2]Expln. II to R. 1, supra.

^[3] Union Bank of India v. Khader International Construction, (2001) 5 SCC 22.

^[4] Union Bank of India v. Khader International Construction, (2001) 5 SCC 22.

^[5] Mathai M. Paikeday v. C.K. Antony, (2011) 13 SCC 174

^[6] Rabhai Punjabhai Vinchiya v. Gujarat SRTC, 1974 SCC OnLine Guj 31:AIR 1975 GUJ 94

^[7] Writ Petition No. 13089 of 2010

^[8] R. 1-A.

^[9] Rr. 6,7.

^[10] R. 2.

^[11] R.3.

^[12] Proviso to R.3.

^[13] Vijay Pratap v. Dukh Haran Nath, AIR 1962 SC 941

^[14] R.4.

^[15] C.R.P.(NPD) Nos. 2936, 2937 of 2013 and CMA No. 693 of 2013

^[16] Rr. 8, 9-A, 18; Art. 39-A, Constitution of India; Ss. 12, 13, Legal Services Authorities Act, 1987; see also, Sugreev v. Sushila Bai, AIR 2003 Raj 149.

^[17] R. 15-A.

^[18] R. 15.

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