Civil Suits By and against Indigent person

PROJECT ON

Civil Suits By and against Indigent person

SUBMITTED TO:MS. Neha Sinha
(FACULTY OF Civil Procedural Code )
SUBMITTED BY:Rajat Agrawal
(ROLL NO: - 106, SEM -IX, BATCH: XI)
UNDER-GRADUATE PROGRAMME
SUBMITTED ON:- 08th, October, 2015

HIDAYATULLAH

NATIONAL LAW UNIVERSITY RAIPUR,

(C.G.)

Civil Suits By and against Indigent person

Table of Contents
ACKNOWLEDGEMENT..............................................................3
Introduction.............................................................................4

Who Can File A Pauper Application?.................................................6

Meaning and Scope: Indigent Person..........................................7

Cost Where Indigent Person Succeeds..............................................9

View taken by different High Courts...........................................10

Conclusion.............................................................................. 12
BIBLIOGRAPHY......................................................................13

Civil Suits By and against Indigent person

ACKNOWLEDGEMENT
I would like to express my Gratitude to my teacher, Ms. Neha Sinha who gave
me the golden opportunity to do this wonderful project on the topic Civil Suits
by and against Indigent Persons which also helped me in doing a lot of
Research and I came to know about so many new things. Secondly I would also
like to thank my parents and friends who helped me a lot in finishing this
project within the limited time.

Civil Suits By and against Indigent person

Introduction
Order 33 deals with suits filed by indigent persons. An indigent person is
defined in explanation one to Rule 1 according to which is a person is an
indigent person if he is not possessed of sufficient means other than property
exempted from attachment in execution of the degree, to enable him to pay
prescribed fees. An application is to be filled along with the suit for permission
to allow the applicant to file the suit as an indigent person. After due inquiry the
court however may reject the application for permission to file the suit as an
indigent person on the ground mentioned in Rule 5. A person having been
declared as indigent person can be disappeared on the ground mentioned in Rule
9. Under Rule 18 the state government can provide free legal service to indigent
person.
Order 33 Rule 1 of the Code of Civil Procedure provides for instituting of suits
by indigent person, stating:
"1. Suits may be instituted by indigent person-- Subject to the following
provisions, any suit may be instituted by an indigent person.
Explanation I.--A person is an indigent person,-(a) if he is not possessed of sufficient means (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 plaint in such suit, or
(b) where no such fee is prescribed, if he 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.
Explanation II.--Any property which is acquired by a person after the
presentation of his application for permission to sue as an indigent person, and
before the decision of the application, shall be taken into account in considering
the question whether or not the applicant is an indigent person.

Civil Suits By and against Indigent person

Explanation III.--Where the plaintiff sues in a representative capacity, the
question whether he is an indigent person shall be determined with reference to
the means possessed by him in such capacity."
In A.A. Haja Muniuddin v. Indian Railway 1, Honble Supreme Court has
observed:
"Access to justice cannot be denied to an individual merely because he does not
have the means to pay the prescribed fee."
In Union Bank of India v. Khader International Construction2, Honble
Supreme Court has held:
"20. Order 33 CPC is an enabling provision which allows filing of a suit by an
indigent person without paying the court fee at the initial stage. If the plaintiff
ultimately succeeds in the suit, the court would calculate the amount of court fee
which would have been paid by the plaintiff if he had not been permitted to sue
as an indigent person and that amount would be recoverable by the State from
any party ordered by the decree to pay the same. It is further provided that when
the suit is dismissed, then also the State would take steps to recover the court
fee payable by the plaintiff and this court fee shall be a first charge on the
subject- matter of the suit. So there is only a provision for the deferred payment
of the court fees and this benevolent provision is intended to help the poor
litigants who are unable to pay the requisite court fee to file a suit because of
their poverty. Explanation I to Rule 1 Order 33 states 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 plaint in such suit. It is further
provided that where no such fee is prescribed, if such person is not entitled to
property worth one thousand rupees other than the property exempt from
1 (1992) 4 SCC 736
2 (2001) 5 SCC 22
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Civil Suits By and against Indigent person

attachment in execution of a decree and the subject-matter of the suit he would
be an indigent person."
Recently, in Jeyabalan v. Virumandi3 the Madurai Bench of the Madras High
Court observed:
13. It is relevant to point that possession of sufficient means does not mean
possession of sufficient property and it does not include such means on which
bare living of party and his family depends and it is only a capacity to raise
funds by normal and available lawful means that would be taken into account."

Who Can File A Pauper Application?

It was held that pauper application can not only be filed by natural persons but
judicial person also lie within its ambit and scope 4. It is well settled that the
provisions of Order 33, Rule 1 CODE OF CIVIL PROCEDURE, 1908 have
been enacted to enable poor persons to seek justice by filling suits or appeals
without court fee and in this context, the sufficient means would not be
sufficient property and includes such means on which the bare living of the
person who are plaintiff and their family members is dependent. In fact what is
intended is capacity to raise funds by norm and available means and not by any
means whatsoever, illegal or improper. It cannot be the purpose of this
legislation that the indigent person should first deprive himself of the sole
means of livelihood or alienate all his assets and seek justice in penury.
If during the pendency of suit the applicant, who is an indigent person, dies, it
cannot

be

said

3 [2010] 3 MLJ 80
4 Supra Note 2
6

that

afterwards

his

legal

heirs

can

get

benefit.

Civil Suits By and against Indigent person

Meaning and Scope: Indigent Person

The concept of indigent person has been discussed in Corpus Juris Secundum5
as following:
"' 93. What constitutes indigency: The right to sue in forma pauperis is restricted
to indigent persons. A person may proceed as poor person only after a court is
satisfied that he or she is unable to prosecute the suit and pay the costs and
expenses. A person is indigent if the payment of fees would deprive one of basic
living expenses, or if the person is in a state of impoverishment that
substantially and effectively impairs or prevents the pursuit of a court remedy.
However, a person need not be destitute. Factors considered when determining
if a litigant is indigent are similar to those considered in criminal cases, and
include the party's employment status and income, including income from
government sources such as Social Security and unemployment benefits, the
ownership of unencumbered assets, including real or personal property and
money on deposit, the party's total indebtedness, and any financial assistance
received from family or close friends. Not only personal liquid assets, but also
alternative sources of money should be considered."
The eligibility of person to sue in forma pauperis has been considered in
American Jurisprudence6 as thus:
"100. Eligibility to sue in forma pauperis; generally: The burden of establishing
indigency is on the defendant claiming indigent status, who must demonstrate
not that he or she is entirely destitute and without funds, but that payments for
counsel would place an undue hardship on his or her ability to provide the basic
necessities of life for himself or herself and his or her family. Factors
5 Corpus Juris Secundum (20 C.J.S. Costs ' 93)
6 American Jurisprudence (20 Am. Jur. 2d Costs ' 100)
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Civil Suits By and against Indigent person

particularly relevant to the determination of whether a party to a civil
proceeding is indigent are:
(1) the party's employment status and income, including income from
government sources such as social security and unemployment benefits;
(2) the ownership of any unencumbered assets, including real or personal
property and monies on deposit; and finally
(3) the party's total indebtedness and any financial assistance received from
family or close friends. Where two people are living together and functioning as
a single economic unit, whether married, related, or otherwise, consideration of
their combined financial assets may be warranted for the purposes of
determining a party's indigency status in a civil proceeding."
The concept was well explained by the Orissa high court in Manglu Chattar v.
Maheshwar Bhoi7 as follows, the tools of artisans are exempted from the
attachment. In the instant case according to the findings of the trial court, the
appellant possessed of tools and weaving materials and they get daily wages.
Both these items are covered under the Section 60(1) of CODE OF CIVIL
PROCEDURE, 1908. There is no other evidence adduced from the side of the
defendant to show that the petitioners are possessed of any other property.
Therefore there is no dispute about the fact that the appellants are all weavers
and their weaving materials consist of tools of artisans. These properties are not
to be taken into consideration to find out whether they will be able to pay the
court fee. So also the daily wages they get cannot be taken into consideration
for the aforesaid purpose. On the aforesaid analysis, it should be held that the
appellants are indigent persons and, therefore, they should be allowed to sue as
7 AIR 1981 Ori 153
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Civil Suits By and against Indigent person

indigent

person.

The Supreme Court of India has settled the issue that, whether a public
company can file a suit as an indigent person or not. The Honble Supreme
Court held that, the word person has to be given its meaning in the context in
which it is used. It refers to a person who is capable of filling a suit and this
being a benevolent provision; it is to be given an extended meaning. Therefore,
a public limited company, which is otherwise entitled to maintain suit as a legal
person, can every well maintain application under Order 33, Rule 1, CODE OF
CIVIL

PROCEDURE,1908.

The word person mentioned in Order 33 includes not only a natural person
but other judicial person also8.

Cost Where Indigent Person Succeeds

Where the plaintiff succeeds in the suit, the court shall calculate the amount of
court fees which would have been paid by the plaintiff if he had not been
permitted to sue as an indigent person; such amount shall be recoverable by the
state government from any party Ordered by the decree to pay the same and
shall be a first charge on the subject matter of the suit.
Such a decree is executed by the collector to institute new proceedings to pursue
for the recovery of the amount of court fee from the person or property liable to
pay the court fee, that too as arrears of land revenue hence, separate recovery
proceedings cannot be pursued in execution proceedings.
But the situation is different when we talk of Indigent person, in a situation
where a suit is filled by the indigent person for realization of full contractual
amount from government. Decree was passed in favour of plaintiff. Direction
was issued to defendant State Government to pay cost of plaintiff as liability
was imposed on defendant to pay court fee payable to Government, hence,
proceedings initiated against plaintiff for recovery of court fee was not
8 Supra, Note 2
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Civil Suits By and against Indigent person

maintainable.

View taken by different High Courts

This issue was also there for consideration before the Madras High court in
Chandrareka v. Secretary of State of India 9, a division bench held that the
plaintiff in that particular suit who obtained a decree for Rs. 100 being a moiety
of the property claimed is liable to pay court fee with regard to the sum of Rs.
100 and the first defendant who contested the suit is liable to pay court fee for
the balance amount under section 411 of CODE OF CIVIL PROCEDURE,
1908 of 1881.
This question also came before the Allahabad High Court in Ganga Dahal v.
M.T. Gaura10, a division bench of the Allahabad High court has held that under
Rule 10 of Order 33 of the CODE OF CIVIL PROCEDURE, 1908, the
legislature deals with the case of a pauper plaintiff who succeeds in the suit and
under Rule 11 with the case of a pauper plaintiff who fails in the suit. There is
no separate provision for a case like the present, in which a pauper plaintiff has
partly succeed and partly failed. Presumably the court is intended to deal with
such a case by combining the provision of the two Rules. It is clear that, if
plaintiff who is permitted to institute the suit as an indigent person succeeded in
the part in a suit, the court fee payable by him for the suit, the court fee payable
by him on the plaint or memorandum of appeal has to be apportioned between
the plaintiff and the defendant in the proportion to the success of the each party.
Therefore the liability of the plaintiff who sued as indigent person or in the
forma pauperis to pay the court fee if he succeeds entirely in the suit and to
pay the court fee in proportion to the success if he succeeds partly in the suit
9 (1891) ILR 14 Mad 163
10 AIR 1916 All 327
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Civil Suits By and against Indigent person

under the provision of Rule 10 and to pay the entire court fee if he fails in the
suit under Rule 11 of the Order 33 of the present code and under the analogous
provisions for the previous code is well established.

Procedure Where Indigent Person Fails

Rule 11 of Order 33 of CODE OF CIVIL PROCEDURE, 1908 deals with this
aspect of Suits by indigent person. Where the plaintiff fails in the suit or the
permission granted to him to sue as an indigent person has been withdrawn, or
where the suit is withdrawn of dismissed.
1. Because the summons for the defendants to appear and the answer has not
been served upon him in consequences of the failure of the plaintiff to pay the
court fee or postal charges, chargeable for such services or to present copies of
the plaint or concise statement, or
2. Because the plaintiff does not appear when the suit is called on for hearing
the court shall Order the plaintiff, or any person added as a co plaintiff to the
suit, to pay the court fees which would have been paid by the plaintiff if he had
not been permitted to sue as an indigent person.

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Civil Suits By and against Indigent person

Conclusion
To sum up, the indigent person, in terms of explanation I to Rule 1 of Order 33
of the Code of Civil Procedure, is one who is either not possessed of sufficient
means to pay court fee when such fee is prescribed by law, or is not entitled to
property worth one thousand rupees when such court fee is not prescribed. In
both the cases, the property exempted from the attachment in execution of a
decree and the subject-matter of the suit shall not be taken into account to
calculate financial worth or ability of such indigent person. Moreover, the
factors such as person's employment status and total income including
retirement benefits in the form of pension, ownership of realizable
unencumbered assets, and person's total indebtness and financial assistance
received from the family member or close friends can be taken into account in
order to determine whether a person is possessed of sufficient means or indigent
to pay requisite court fee. Therefore, the expression "sufficient means" in Order
33 Rule 1 of the Code of Civil Procedure contemplates the ability or capacity of
a person in the ordinary course to raise money by available lawful means to pay
court fee.

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Civil Suits By and against Indigent person

BIBLIOGRAPHY
STATUTES/RULES
1. The Code of Civil Procedure, 1908
BOOKS
1. P.K.Majumdar, COMMENTARY ON THE CODE OF CIVIL PROCEDURE, 1908,
Edition 5, Orient Publishing company.
2. Takwani, C. K., CIVIL PROCEDURE, Edition 6, Eastern Book Company, Lucknow
3. Vol 2, Mulla, THE CODE OF CIVIL PROCEDURE, 17th edition, B.M. Prasad,
Lexis Nexis, Butterworth.
4. Vol. 2, Banerjee, A. K., COMMENTARY ON CODE OF CIVIL PROCEDURE,
1908, Edition-2007, Dwivedi & Company, Allahabad.
5. Vol. 3, Doabia, T. S. Justice, CODE OF CIVIL PROCEDURE, Edition 13,
LexisNexis Butterworths Wadhwa Nagpur.
WEB SITES
1.
2.
3.
4.
5.

www.indiankanoon.org/search/?...suits%20by%20an%20indigent%20person
http://www.legalservicesindia.com/article/article/suits-by-indigent-person-1279-1.html
http://www.legalblog.in/2011/07/indigent-person-under-code-of-civil.html
www.studymode.com
http://www.legalblog.in/2011/07/indigent-person-under-code-of-civil.html

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