Civil Procedure Code-Project Report

SUITS BY AN IDIGENT PERSON

Aditya Dassaur 7th Semester Roll No- 206/10 Section-A

Civil Procedure Code-Project Report

ACKNOWLEDGEMENT

I would like to express my Gratitude to my teacher, Ms. Karan Jawanda who gave me the golden opportunity to do this wonderful project on the topic Suits by 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.

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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

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before the decision of the application, shall be taken into account in considering the question whether or not the applicant is an 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 Railway1, 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
1 2

(1992) 4 SCC 736 (2001) 5 SCC 22

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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 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 scope4. 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 that afterwards his legal heirs can get benefit.

3
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[2010] 3 MLJ 80 Supra Note 2

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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 particularly relevant to the determination of whether a party to a civil proceeding is indigent are:
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Corpus Juris Secundum (20 C.J.S. Costs ' 93) American Jurisprudence (20 Am. Jur. 2d Costs ' 100)

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(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 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
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AIR 1981 Ori 153

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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 but other judicial person also8. PROCEDURE,1908. The word person mentioned in Order 33 includes not only a natural person

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 maintainable.

Supra, Note 2

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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 India9, 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 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
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(1891) ILR 14 Mad 163

AIR 1916 All 327

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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.

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
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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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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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