Can an indigent person maintain a suit or appeal, if so under which provision of law?

Question: Can an indigent person maintain a suit or appeal, if so under which provision of law? [U.P.H.J.S. 1995]

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Answer

Order XXXIII, Rules 1-18 of the Code of Civil Procedure, 1908 deal with ‘Suits by Indigent Persons’ and provides for the appropriate procedures to be followed by one who is desirous of instituting a suit in forma pauperis.

There are two major Orders under the CPC that deal with indigent persons.

• The first is Order XXXIII, Rules 1-18 which deals with ‘Suits by Indigent Persons’.
• The second is Order XLIV, Rules 1-3. While Order XXXIII deals with suits at the trial level, Order XLIV refers to situations where the first or second appeal is to be preferred.

According to Rule 1 of Order XXXIII, provisions under CPC have been enacted to enable poor persons to seek justice by filing suits or appeals without a court fee. However, to claim the status of an in order to maintain a suit or appeal as an “indigent person” within the meaning of Order XXXIII Rule 1 Explanation I (a) & (b) of the Code for filing a suit under Order XXXIII of the Code, he has to prove that he is not possessed of sufficient means to pay the requisite court fees prescribed by law for the plaint in the suit filed by him.

The question as to whether the plaintiff is possessed of sufficient means to pay the requisite court fees for the plaint in the suit as per the provisions of the Court Fees Act is required to be decided by holding an inquiry as prescribed under Rules 4 to 7 of Order XXXIII of the Code by the trial court.

The Hon’ble Supreme Court in Union Bank of India v. Khader International Construction [(2001) 5 SCC 22], held that Order XXXIII of CPC is an enabling provision that allows the indigent person to file a suit without paying the court fee at the initial stage.

The court 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.

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