- Abstract
In the constitution of India, the Indian citizens have the access to justice – Social, economical and political. And these rights are given to everyone, regardless of their economical status. The justice system of India requires every person to submit a court fees in order to file a suit. In some cases a person may fail to submit the court fees, but his inability to pay the court fees doesn’t disables him from calming his rights from the court of law. To protect these rights of a pauper person/poor person, the Code of Civil Procedure, 1963, has laid down the concept of “suit by indigent person”. Where a person who is unable to render the court fees is also empowered to lodge his suit and claim his right from the other person.
- Key Words
Pauper person, Indian justice system, Court fees, Indigent person, Cost
- Nature and scope
Order 33 deals with filing of suits by indigent persons. It enables persons who are very poor to pay court fees and allows them to institute suits without payment of requisite court fees.
- Object
The provisions of Order 33 are directed to enable an indigent persons to institute and prosecute suits without submission of any court fees. Usually, a plaintiff suing in a court of law is bound to pay court fees prescribed under the Court Fees Act at the time of presentation of plaint. But a person may be very poor to pay the requisite court fee. This order exempts such person.
From paying the court fee at the first instance and allows him to prosecute his suit in form of paupers, provided he satisfies certain conditions laid down in this order.
- Order 33 has been enacted to serve a triple purpose, viz:
i) to protect bona fide claims of an indigent person;
ii) to safeguard interest of revenue; and
iii) to protect defendant from harassment.
- “Indigent person”: Meaning: Order 33 Rule 1
A person is an “indigent person” (i) if 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 fee is prescribed, when he is not entitled to property worth one thousand rupees. In both the cases, the property exempt from attachment in execution of a decree and the subject-matter of the suit should be excluded.[i]
Any property acquired by the claimant after the submission of the application for permission to sue as an pauper person and the decisions thereon should be taken into consideration for deciding the question whether the applicant is an indigent person.
The word “person” also includes juristic person.[ii]
- “Sufficient means”: Meaning
The expression “sufficient means” contemplates ability or capacity of a person in ordinary course to raise money by available lawful means to pay court-fee. The property exempted from attachment in execution of a decree and subject-matter of suit shall not be taken into account to calculate ability of such indigent person. But the person’s employment status and total income including retirement benefits in form of pension, realizable assets as also financial assistance received from family members or friends can be taken into account to determine whether a person is possessed of sufficient means to pay requisite court-fee.
- Contents of application: Rule 2
Every application for permission to sue as an indigent person should contain the following particulars:
(1) The particulars required in regard to plaints in suits (2) A of any movable or immovable property belonging to the applicant with the estimated value thereof; and
(2) Signature and verification as provided in Order 6 Rules 14 and 15, 40. The application should be presented by the applicant to the court in person unless exempted by the court. Where there are two or more plaintiffs, it be presented by any of them. The suit commences from the moment an application to sue in form of a pauper is presented.
- A Rejection of application: Rule 5
The court will reject an application for permission to sue as an indigent person in the following cases:
Where the application is not framed and presented in the prescribed manner; or
i) Where the applicants not an indigent person; or
ii) Where the applicant has, within two months before the presentation of the application, disposed of any property fraudulently or in order to get permission to sue as an indigent person;
iii) Where there is no cause of action; or Where the applicant has entered into an agreement with reference to the subject-matter of the suit under which another person has obtained interest; or
iv) Where the suit appears to be barred by law; or
v) Where any other person has entered into an agreement with the applicant to finance costs of the litigation.
- Inquiry: Rule 1-A
In the first instance, an inquiry into the means of the applicant should bemade by the Chief Ministerial Officer of the court. The court may adoptthe report submitted by such officer or may itself make an inquiry. Where the application submitted by the applicant is in proper form and is duly represented, the court may examine the applicant regarding the merits of the claim and the property of the applicant. The court shall then issue notice to the opposite party and to thegovernment Pleader and fix a day for receiving evidence as the applicant.
May adduce in proof of his indecency or in disproof thereof by the opposite party or by the Government Pleader. On the day fixed, the court shall examine the witnesses (if any), produced by either party, hear their arguments and either allow or reject the application.
- Where permission is granted: Rules 8-9-A
Where an application to sue as a indigent person is granted, it shall be deemed to be a plaint in the suit and shall proceed in the ordinary manner, ex ept that the plaintiff will not have to pay court fees or process fees.
The court may assign a pleader to an indigent person if he is not rep- resented by a pleader. The Central Government or the State Government may make provisions for rendering free legal aid and services to indigent persons to prosecute their cases. A defendant can also plead set-off or counterclaim as an indigent person.”
- Where permission is rejected: Rules 15-15-A
Where the court rejects an application to sue as an indigent person, it will grant time to the applicant to pay court fees. An order refusing to allow an applicant to sue as an indigent person shall be a bar to a subsequent similar application. However, this does not debar him from suing in an ordinary manner, provided he pays the costs incurred by the Government Pleader and the opposite party in opposing the application.
- Revocation of permission: Rule 9
The court may, on an application by the defendant or by the Government Pleader, revoke permission granted to the plaintiff to sue as an indigent person in the following cases:
- Where he is guilty of vexatious or improper conduct in the course of the suit; or
- Where his means are such that he ought not to continue to sue as an indigent person; or
- Where he has entered into an agreement under which another
- Person has obtained an interest in the subject-matter of the suit.
- Costs
The costs of an application to sue as an indigent person shall be the costs in the suit.
- Recovery of court fees and costs:
Where indigent person succeeds: Where the plaintiff (indigent person) succeeds in the suit, the court shall calculate the amount of courts and costs and recover from the party as ordered by the court.
Where indigent person fails: Where the plaintiff (indigent person) tails or the suit abates, the court shall order him (plaintiff) to pay court fee costs.
- Right of State Government
The State Government has right to recover court fees. For that the government is deemed to be a party to the suit.
- Realization of court fees: Rule 14
Where an indigent person succeeds in a suit, the State Government can recover court fees from the party as per the direction in the decree and it will be the first charge on the subject-matter of the suit. Where an indigent person fails in the suit, the court fees shall be paid by him. 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.
- Set-off or counter claim
An indigent person may also plead set-off or file counter claim without paying court fees.
- Appeal
An order rejecting an application to sue as an indigent person is appealable.
- Appeals by indigent persons: Order 44
A person unable to pay court fees on memorandum of appeal may apply to allow him to appeal as an indigent person. The necessary inquiry as pre- scribed in Order 33 will be made before granting or refusing the prayer. But where the appellant was allowed to sue as an indigent person in the trial court, no fresh inquiry will be necessary if he files an affidavit that he continues to be an indigent person.
- Conclusion
To conclude the topic, we can say that Indian justice system has rightly incorporated the concept of allowing a pauper person to file a suit and to claim his right under the concept of suits by indigent person under order 33 of the CPC. This concept safeguards the rights of a pauper person that are given under the constitution of India. But the fact should be remembered that court will never leave its court fees, later or sooner, the court will claim it court fees by either claimant or by the defendant depending upon the situation which are discussed above. It is the primary responsibility of the state government to collect the court fees from either the claimant or the defendant.
- Case Law
Union Bank of India v. Khader International Construction In this case the apex court discussed the scope of suit by indigent person. The apex court held that, a person who isn’t capable of paying the court fees apart from the property attached, will be counted as an indigent person.
Lakshmi v Vijaya Bank, In this case the High court held that the right to sue as an indigent person is a personal right and the legal representatives of the plaintiff, in any case he dies during the trail, will be allowed to sue as a indigent person.
This article is written by Ritik Chaurasiya,College – LC-1 ( 1st Year ) Course – LLB ,during his internship with Le Droit India.
