Suit by Indigent Person

The present article, “Suit by Indigent Person: Order 33” will discuss the operative contents of Order 33 and all relevant rules under the same, with reference to case law.

The term ‘indigent’ for the purposes of the Code of Civil Procedure, 1908 (‘CPC’; ‘the Code’) refers to one who is unable to discharge the requisite court fee for instituting a suit in civil court, apart from the property exempted from attachment in the execution of the decree. It is submitted that nothing should preclude a person from moving the court and seeking justice if aggrieved by any cause of action- including financial deprivation.

In order to provide for such a state of affairs, the CPC contains some provisions relating to indigent persons. Order 33, Rules 1-18 deal with ‘Suits by Indigent Persons’ and provides for the appropriate procedures to be followed by one who is desirous for instituting a suit in forma pauperis.

Introduction

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

The first is Order 33, Rules 1-18 which deal with ‘Suits by Indigent Persons’.

The second is Order 44, Rules 1-3. While Order 33 deals with suits at the trial level, Order 44 refers to situations where the first or second appeal is to be preferred.

For the purpose of this article, the discussion shall be limited to the provisions under Order 33.

In considering the provisions under Order 33, one can divide Rules 1-18 into two parts. Rules 1-9 deal with the requirements of an indigent person and the procedure of applying for permission to sue as an indigent person. Rules 9A-18 deal with the procedure if an indigent person wins or loses the suit, or when the suit abates. It also deals with the role and participation of the state and central governments in the suit of an indigent person.

Order 33: Suits by An Indigent Person

(a). Order 33, Rule 1: Suits may be instituted by indigent persons

As for the object of Order 33, it is intended to enable persons who are indigent to institute and prosecute suits without payment of a requisite court fee, other than fees payable for service process, that is for service of notice upon opposite parties.[1] In order to avail this permission to sue as an indigent person, one must satisfy the conditions as mentioned under Order 33, Rule 1 of the Code and if successful, would then receive permission from the appropriate court to institute a civil suit in forma pauperis.

A person is ‘an indigent person’ under Order 33, Rule 1:

1. When he is not possessed of sufficient means to enable him to pay the fee prescribed by the law for the plaint in the suit proposed to be instituted by him;[2] or
2. Where no such fee is prescribed, when is not entitled to property worth rupees one thousand, other than the property exempt from attachment in execution of a decree and the subject matter of the suit.

The terms “sufficient means” and “is not possessed of” are important factors to consider for a court in granting permission to a person to sue as in forma pauperis. Order 33, Rule 1 also notes that property that is exempt from attachment and subject matter of the suit are not to be taken into consideration while considering the means of a person.

The term “is not possessed of” was discussed in Rajamma Joseph v. Binu Prasad,[3] wherein the order of a court dismissing the application of the appellant in seeking permission to sue as in forma pauperis, was being appealed by the person so denied permission. The subordinate court had held that the appellant should sell part of her immovable property to raise the requisite funds for court fee, but the Kerala High court ruled that this finding was unsustainable.

The Court thus ruled that it was not equitable to reject the petition without giving the appellant an opportunity to prove her case, and thus set aside the order of the subordinate court on the grounds that the mere possession of immovable properties without proof of derivation of income does not satisfy the condition of “sufficient means” as per Order 33, Rule 1. Thus, the court must enter into a finding regarding this capacity to raise the money to pay.[4] Moreover, the possession of sufficient means refers to the capacity of the party to raise funds by lawful means- property required for a bare living of the party and his family is to be excluded in considering sufficient means.[5]

In the case of Manju Lata v. Sidhkaran, it was held by the Rajasthan High Court that the term “is not possessed of” contemplates not the possession of the property but sufficient means i.e capacity to raise money to pay the court fee.[6]

It is important to note that the term ‘person’ as mentioned in Order 33, Rule 1 does not only refer to natural persons but also include other juridical persons also.[7]. This implies that a corporate entity can institute a suit under Order 33, Rule 1 and an application under Order 44 Rule 1.[8]

In a particular case[9] where a body corporate sued in forma pauperis, it was the question before the Kerala High Court that “…whether a company as a juridical person is entitled to sue in forma pauperis under Order 33, Rule 1, C.P.C.” While considering the arguments of both sides, the High Court noted that Order 33, Rule 1, CPC should have an extended meaning, and that “the context and object of the enactment would not exclude juridical persons from the category of persons within the meaning of the said rule.” Thus, in the words of the Kerala High Court:

“…Suits under the Code of Civil Procedure can be instituted not only by natural human beings but also by artificial persons such as a corporation or an idol and also by persons like executors, administrators, trustees and official receivers who represent the estate of another.” [10]

(b). Order 33, Rule 1A: Inquiry into the means of an indigent person

This provision states that the chief ministerial officer of the court shall investigate in the first instance whether a person is or is not indigent, and unless the court otherwise directs, the report submitted by the chief ministerial officer shall be adopted by the court as its own finding, and may itself make an inquiry into the issue.

(c). Order 33, Rule(s) 2-4

A person is not entitled to institute a suit as indigent as a manner of right.[11] He can sue as an indigent only if he has obtained the permission of the court. He has, therefore, to apply for permission to sue as indigent as provided in O33 Rules 2-3. These provisions deal with the contents of an application, presentation of such application and examination of the applicant in case of a person seeking permission to sue as an indigent person.

As per Rule 2 (‘Contents of the Application’) the application should contain the particulars required in regard to plaints in suits; a schedule of property belonging to the applicant, with estimated value thereof, should be annexed thereto; and it should be signed and verified as if it was a plaint. Thereafter, in keeping with Rule 3 (‘Presentation of the Application)’, the application should be presented to the court by the applicant in person, unless he is exempted from appearing in court, in which case it may be presented by an authorised agent who can answer all material questions relating to the application.

Finally, as per Rule 4 (‘Examination of the application’), the court may fix a day for receiving evidence of the applicant’s indigency, and have the applicant present the merits of the claim and the property of the applicant.

(d). Order 33, Rule 5: Rejection of Application

This provision provides for the various disqualifying conditions that would mandate a court to reject an application to sue as an indigent person for the purposes of the Code. They are as follows:[12]

• Where it is not properly framed and presented; or
• Where the applicant is not an indigent person; or
• Where he has, within 2 months next before the presentation of the application, disposed of any property fraudulently or in order to be able to apply for permission apply as an indigent person; or
• Where his allegations do not show a cause of action; or
• 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.
• 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; or
• Where any other person has entered into an agreement with him to finance the litigation.

(e). Order 33, Rule 6: Notice of day for receiving evidence of applicant’s indigency

In the situation where the application (nor the examination of the applicant)[13] discloses any reason or ground for rejecting the application, the court should, first give an opportunity to show that the applicant is not entitled to sue as an indigent.[14] Order 33, Rule 6 provides that the court is mandatorily required to fix a day for holding such an enquiry, and clear notice of at least ten days to be given to the government pleader and the opposite party. At this enquiry, the court would be ready to receive any evidence as the application may adduce in proof of his indigency and for hearing any evidence which may be adduced in disproof thereof.[15]

(f). Order 33, Rule 7: Procedure at hearing

This provision lays out the procedure for the hearing mentioned in Order 33, Rule 6. Order 33, Sub-rule 6(1) states that the court would examine the witnesses produced by either party and may examine the applicant or his agent, making a full record of the evidence so presented. Further, if the inquiry discloses any evidence of the five grounds of disqualification mentioned in Order 33, Rule 5, that is grounds for rejecting the application- the court should refuse to allow the applicant to sue as an indigent person, otherwise, the court may grant the application.[16]

The enquiry procedure is a vital component in providing permission to sue in forma pauperis- thus, it is the duty of the court to insist upon a report from the government regarding the financial status of the applicant. Where the clear mandate of Rules 6 to 8 was not followed, it would vitiate the order granting leave to sue as a pauper.[17]

(g). Order 33, Rule 8: Procedure if admitted

If after hearing the material on record following the procedure provided in Order 33, Sub-rule 7 (3), the court comes to the conclusion that the plaintiff be permitted to sue an indigent person, the court must then pass an order to register the plaint and number it and proceed further in an ordinary manner except for payment of court fee.[18]

(h). Order 33, Rule 9: Withdrawal of permission to sue as an indigent person

According to this provision, the defendant or of the government pleader may apply for an order that the plaintiff is not an indigent person, and the court may order that the plaintiff is not an indigent person.[19] This can be done during the pendency of the suit and with seven clear days of notice in writing to the plaintiff. The situations in which the court may pass such an order are as follows:[20]

• If he is guilty of vexatious or improper conduct in the course of the suit;
• If it appears that his means are such that he ought not to continue to sue as an indigent person; or
• If he has entered into any agreement with reference to the subject matter of the suit, under which any other person has obtained an interest in such a subject matter.

(i). Order 33, Rule 9A: Court to assign a pleader to an unrepresented indigent person

This provision was inserted by the 1976 Amendment to the Code, and states that the court has the discretion to assign a pleader to a person who has obtained the requisite permission to sue as an indigent for the purposes of the Code.[21] The provision also states that the High Court of a state, with the approval of the state government, may make rules relating to the mode of selection of pleaders for the purposes of this provision.[22]

(j). Order 33, Rule 10: Costs where indigent person succeeds

In the situation where the indigent person succeeds in his suit, this provision provides that the court will calculate the court fee that the plaintiff would have to pay if he had not been permitted to sue as an indigent.[23] Such amount once calculated would be recoverable by the state government from the party ordered by the decree to pay the said amount, and shall be a first charge on the subject matter of the suit.[24]

(k). Order 33, Rule(s) 11-11A

Order 33, Rule 11 deals with the procedure where an indigent person fails in his suit and Order 33, Rule 11A deals with the procedure where an indigent person’s suit abates. Thus, in both these cases, where the suit of the plaintiff, in which permission to sue as an indigent person has been granted, fails in his suit,[25] is withdrawn or dismissed,[26] or abates[27] by reason of the death of the plaintiff, the court must order the state government to recover the court fee payable from the plaintiff or the estate of the deceased plaintiff.

Dismissal or withdrawal of a suit may occur because the summons for the defendant was not served due to the non-payment of the service processor charge in post or because the plaintiff was not present when the suit was called on for hearing.[28]

(l). Order 33, Rule 12-13

Order 33, Rule 12 deals with how the ‘State government may apply for payment of Court fees’ while Order 33, Rule 13 deals with matters relating to the ‘State government to be deemed a party’ in a civil suit. Rule 12 states that the state government has the right to apply to the court at any point for an order for the payment of court fees under rules 10, 11 or 11A of the Code. Rule 13 provides that all matters arising between the State Government and any party to the suit under rules 10, rule 11 rule 11A or rule 12 of the Code shall be deemed to be questions arising between the parties to the suit within the meaning of section 47 of the Code, that is questions to be determined by the court executing the decree in question.

(m). Order 33, Rule 14:Recovery of amount of Court fees

This provision states that when an order is made under rule 10, rule 11 or rule 11A, the court shall forthwith cause a copy of the decree or order to be forwarded to the Collector who may, without prejudice to any other mode of recovery, recover the amount of court-fees specified therein from the person or property liable for the payment as if it were an arrear of land revenue.

(n). Order 33, Rule 15: Refusal to allow applicant to sue as an indigent person to bar a subsequent application of like nature

The order of refusal by the court is a bar to any subsequent application of the like nature by the applicant in respect of the same right to sue, but the applicant has the liberty to institute a suit in an ordinary manner, provided he first pays the cost incurred by the opposite party, and by the government in opposing the application.[29] The provision emphasizes that the liberty of the applicant is provided that the plaint shall be rejected if he does not pay either at the time of instituting the suit or within an allowed time- the costs incurred by the state government and by the opposite party in opposing the application to sue in forma pauperis.[30]

(o). Order 33, Rule 15A: Grant of time for payment of Court-fee

This provision states that nothing provided in Rules 5, 7 or 15 shall prevent the court while rejecting an application under rule 5 or refusing an application under rule 7, from granting time to the applicant to pay the requisite court fee. This time period could be extended by the court from time to time, and in case the court fee is deposited by the applicant, the plaint would be deemed to have been instituted as on the date on which the application to sue as an indigent was presented before the court at the first instance.[31]

(p). Order 33, Rule 16: Costs

This provision states that the costs of an application to sue as an indigent person (refer to Order 33, Rules 1-4) and of an inquiry into indigency shall be costs in the suit.[32]

(q). Order 33, Rule 17:Defence by an indigent person

According to this provision, any defendant who desires to plead a set-off or counter-claim against any claims made by the plaintiff in his plaint, may be allowed to set up such claim as an indigent person- and the rules of Order 33 would apply to him as if she were a plaintiff and his written statement were a plaint in a civil suit.[33]

(r). Order 33, Rule 18: Power of Government to provide for free legal services to indigent persons

This provision states that the Central or State governments have the discretion to enact such supplementary provisions for providing free legal services to those who have been granted the permission to sue as indigent people.[34] However, this discretionary power is limited by the provisions of Order 33 of the Code. Further, the High Court may make rules to implement such supplementary provisions once effected by the Central Government or State government- which can include the nature and extent of legal services provided, conditions under which they will be made available, agencies through which they may be rendered and so forth.[35]

Conclusion

The present article has discussed Order 33, Rules 1-18 of the Code dealing with suits by indigent persons, including the procedure for applying for permission to sue as an indigent, costs when indigent persons are successful in their suits, procedure where suits are dismissed or withdrawn or abates due to death of indigent persons.

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[1] D.F Mulla, The Key to Indian Practice: Summary of the Civil Procedure Code, 11^th ed., 2016.

[2] Union of India v. Khader International Construction, JT 2001 (5) SC 218.

[3] Rajamma Joseph v. Binu Prasad, 2010 (1) KT572 (576-77) (DB).

[4] Ibid.

[5] O.P. Neelam Hosiery Works v. State Bank of India, AIR 1994 HP 1.

[6] Manju Lata v. Sidhkaran, AIR 2005 Raj 32.

[7] Supra, at note 1.

[8] Bhopal Wholesale Consumer Co-operative Store Ltd. v. Madan Lal Gandhi, 2009 (2) MP LJ 219 (221-22) (DB).

[9] Mathew vs Kerala United Corporation Ltd, AIR 1961 Ker 180.

[10] Ibid.

[11] Supra, at note 1.

[12] Order 33, Rule 5 (a)-(g), Code of Civil Procedure, 1908.

[13]Supra, at note 1.

[14] Order 33, Rule 6, Code of Civil Procedure, 1908.

[15] Ibid.

[16] Supra, at note 1.

[17] D. Hemchandra Sagar v. D Prithviraj, AIR 2004 Kant 33.

[18] Order 33, Rule 8, Code of Civil Procedure, 1908.

[19] Order 33, Rule 9, Code of Civil Procedure, 1908.

[20] Order 33, Rule 9 (a)- (c), Code of Civil Procedure, 1908.

[21] Order 33, Rule 9A (1), Code of Civil Procedure, 1908.

[22] Order 33, Rule 9A (2), Code of Civil Procedure, 1908.

[23] Order 33, Rule 10, Code of Civil Procedure, 1908.

[24] Ibid.

[25] Order 33, Rule 11, Code of Civil Procedure, 1908.

[26] Ibid.

[27] Order 33, Rule 11A, Code of Civil Procedure, 1908.

[28] Supra, at note 25.

[29] Supra, at note 1.

[30] Order 33, Proviso to Rule 15, Code of Civil Procedure, 1908.

[31] Order 33, Rule 15A, Code of Civil Procedure, 1908.

[32] Order 33, Rule 16, Code of Civil Procedure, 1908.

[33] Order 33, Rule 17, Code of Civil Procedure, 1908.

[34] Order 33, Rule 18 (1), Code of Civil Procedure, 1908.

[35] Order 33, Rule 18 (2), Code of Civil Procedure, 1908.

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