Can a defendant be allowed to defend in forma pauperis?

Question: Can a defendant be allowed to defend in forma pauperis? [UP C.J. 2003]

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In a case of law, both the plaintiff and the defendant are given equal opportunity and sufficient time to present and defend themselves in the Court of Justice. To be considered as a pauper in the court the same rules are applicable to him as they are applicable to the plaintiff.

Answer

Order XXXIII of CPC has been enacted for various purposes:-

• to protect bonafide claims of an indigent person;
• to safeguard the interest of revenue;
• to protect the defendant from harassment.

Order XXXIII of the Code prescribes the procedure for the institution of a suit by a pauper. Rule 1 provides that subject to the following provisions, any suit may be instituted by a pauper. The explanation provides that a person is a ‘pauper’ when he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaintiff such suit, or where no such fee is prescribed when he is not entitled to property worth one hundred rupees other than his necessary wearing apparel and the subject matter of the suit.

Whenever an application to sue as an indigent person is granted, normally it has to be considered as a plaintiff in the suit and the only difference lies in that there occurs no cost, fees to the plaintiff. They get help through pleaders appointed by courts. Either the Central or State Government may decide to provide free legal aid. Even defendants have the right to apply for set-off and counterclaim.

In Manaji Rajuji v. Khandoo Baloo, ILR 36 Bom 279 at p. 281 where the learned judge observed that all the provisions of Order XXXIII of the Civil Procedure Code seem to negative the idea of anybody but an actual pauper, a real pauper, a man without means, being permitted to maintain or defend a suit in forma pauperis. It was held that the privilege of maintaining a pauper suit is a personal privilege granted to people who have no means of carrying on or continuing litigation and the legal representative of a pauper could not continue a suit in forma pauperis unless he was himself a pauper.

In the matter of A.A. Haja Muniuddin of Indian Railways (1992), 4 SCC 736, The Hon’ble Supreme Court observed: “Access to justice cannot be denied to an individual merely because he does not have the means to pay the prescribed fee.”

The court has held in Muniammal v. P.M. Ranganatha Nayagar And Anr [AIR 1955 Mad 571] that in case of a Pauper suit or be it any suit or an Appeal the defender is allowed to defend himself in the Court of Justice. The defendant is thus also allowed to file an application for legal aid/ assistance in court.

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