SUITS BY INDIGENT PERSONS- CIVIL PROCEDURE CODE

CIVIL PROCEDURE CODE- II

1ST INTERNAL ASSESSMENT

TOPIC: SUITS BY INDIGENT PERSONS

FACULTY IN- CHARGE: PROF.NITIN KUMAR

SUBMITTED BY:

MS. DEVIKA A. GADGIL

PRN 15010126310

4TH YEAR BBA LLB (Hons.)

DIVISION D

1ST INTERNAL ASSESSMENT- CIVIL PROCEDURE CODE Page 1

 SUITS BY INDIGENT PERSONS- CIVIL PROCEDURE CODE

TABLE OF CONTENTS

SR.NO. PARTICULARS PAGE

NO.
1. ABSTRACT 3
2. INTRODUCTION 3
3. SCOPE & OBJECT 4
4. APPLICATION & ANALYSIS OF THE PROVISIONS: ORDER 4
33
5. APPLICATION & ANALYSIS OF THE PROVISIONS: ORDER 6
44
6. CONCLUSION 7
7. BIBLIOGRAPHY 8

1ST INTERNAL ASSESSMENT- CIVIL PROCEDURE CODE Page 2

 SUITS BY INDIGENT PERSONS- CIVIL PROCEDURE CODE

ABSTRACT

Order 33 and 44 of the Civil Procedure Code, 1908 (hereinafter referred to as the Act) deals
with the issues and application of various principles of law with regard to suit by an indigent
person. Order 33 discusses about the suits which are filed by an indigent person while order
44 deals with the appeals made by an indigent person. The author attempts to throw light on
the various provisions with regard to the rights, liabilities and duties of an indigent person,
the application of the provisions along with the judicial interpretation of the same. The article
also brings to the forefront the scope, development of the concept and the provisions therein.

INTRODUCTION

Before dealing with the analysis of the topic, it is important to deal with the understanding of
the terminology ‘Indigent person’. Essentially the term indigent person refers to a destitute
person who relies upon help from public welfare funds or charity. It must be noted that the
term ‘person’ refers to natural as well as judicial persons.1 Under the Act, if there should be
an occurrence of a common suit, the arrangement for enabling a pauper to file a suit has been
furnished under Order 33.

According to the order 33, an indigent person, which is defined in explanation one to Rule 1,
is a person who doesn’t have sufficient means to pay the prescribed fees other than property
exempted from attachment in execution of the degree. Basically, an indigent person is a
person who either does not have sufficient means to pay the court fees when she/he is
required to pay or is not entitled to property worth one thousand rupees when the court fees is
not prescribed.

SCOPE & OBJECT

As stated above the object of the provisions is to enable a person from the financial weaker
section of the society to avail justice without experiencing the burden of enormous court fees.
This object is evident from the mere reading of the provisions of Order 33.

A plaintiff suing in a civil court must pay the court fees prescribed by the law for the plaint
and subsequent proceedings in the suit under the Court-Fees Act (7 of 1870). Order 33 of the

1
M/s. Mamata Papers Pvt. Ltd. v State of Orissa

1ST INTERNAL ASSESSMENT- CIVIL PROCEDURE CODE Page 3

 SUITS BY INDIGENT PERSONS- CIVIL PROCEDURE CODE

Code of Civil Procedure exempts such indigent person from paying requisite court fee at the
first instance and allows him to institute suit or prosecute appeal in forma pauperis.2

Access to justice can’t be denied to an individual merely because he/she does not have the
means to pay the prescribed fees. Such a view would leave indigent person without a
remedy.3

APPLICATION & ANALYSIS OF THE PROVISIONS: ORDER 33

Before a person can file a suit as an indigent person, she /he should present an application
before the court which needs to be accepted so as to entitle the person as an indigent person.
The court has to satisfy itself that the applicant does not have sufficient means. If the person
claiming to be an indigent person, presenting an application for the same, is exempted from
the court, the application can be filed by an authorized agent such as an advocate. 4

After the presentation of the application, the court examines the applicant as to the merits of
the case and whether the applicant comes under the ambit of the provision. The court may
examine other persons, other than applicant but only to ascertain the factor of pauperism and
not regarding the claim. Rule 3 states that the person who is presenting the application shall
be in a position to answer all material questions relating to the application and he may also be
examined by the court.5

After the examination, the court may or may not reject the application. Rule 56 of the order
provides for the grounds for rejecting the application. It has been a debatable topic whether
the grounds mention under rule 5 are exhaustive are not. Many of the high courts have
conflicting views regarding the exhaustiveness of the grounds mentioned.

After the scrutiny of the application, the date of presentation of evidence by the applicant is
fixed by the court. Evidence should be confined only to the question of pauperism and not
extend to the merits of the case.7 The 10 day notice is also a mandatory provision which

2
Supra note 5.
3
id.
4
B.Manikyam v B Ramamurthy AIR 1975 Ori 20.
5
Union Bank of India v Khader Intl. Construction, Appeal (civil) 943 of 1993.
6
Order 33, Civil Procedure Code.
7
Abdul Wakil Khan v Bibi Talimunnissa, AIR 1950 Pat 517.

1ST INTERNAL ASSESSMENT- CIVIL PROCEDURE CODE Page 4

 SUITS BY INDIGENT PERSONS- CIVIL PROCEDURE CODE

should be carried out by the court which if not given is a fatal defect and any finding recorded
by the court is illegal and must be set aside.8

Rule 7 deals with granting or refusing the applicant to file the suit as an indigent person after
considering the evidences produced by the applicant or of the opposite party. This stage is
reached only after the court has issued and served the notices under rule 6.9

APPLICATION & ANALYSIS OF THE PROVISIONS: ORDER 44

Order 44 deals with the provision of appeal by an indigent person. The present rule provides
that the provisions relating to suits by paupers shall apply, so far as may be, to appeal by
paupers.

A rejection of the applicant under rule 1 of Order 44 does not amount to a finding that the
appeal is not fit for admission on merits. 10 A memorandum of appeal and an application for
leave is required to apply for leave to appeal as a pauper and has to be accompanied by the
judgment and decree sought to be appealed. When the pauper’s application is disposed, the
appeal is not necessarily disposed. He may still treat it as an existing appeal if the appellant
desires to pay the full court – fees on the appellant continue it as an ordinary appeal. If the
appellant is granted leave by the judge as a pauper then the judge is under no obligation to
dismiss the case. Where an application for leave to sue as a pauper is rejected owing to the
memorandum of appeal which accompanied it being unstamped, the rejection of the
application does not carry with it the rejection of the memorandum of the appeal. The
rejection of the application for leave to file the appeal in forma pauperis does not involve the
rejection of the memorandum of appeal, and where the court grants, at the time it refuses
leave, time for payment of court fee, and that is paid within the time given, the appeal must
be taken to have been presented, for purposes of limitation, at the time of its original
presentation.

No appeal lies under the Code of Civil Procedure from an order refusing leave to appeal as a
pauper.

8
Radhika Prasad v Shyama Charan, AIR 1966 Pat 387.
9
Province of Orissa v Dibyasingh Nand AIR 1941 Pat 594.
10
Ram Sarup v. Union of India AIR 1983 SC 1196

1ST INTERNAL ASSESSMENT- CIVIL PROCEDURE CODE Page 5

 SUITS BY INDIGENT PERSONS- CIVIL PROCEDURE CODE

CONCLUSION

The law has evolved around the concept of suit filed by an indigent person. From the
provisions discussed above, it is clear that the law leaves a wide scope of interpretation. Also,
there are many loopholes in these provisions. Judicial decisions set down as precedents thus
play an important role. According to Order 33 Rule 11 of Code of Civil Procedure, an
indigent person cannot be held liable for any kind of damages other than the court fee, i.e. if a
person fails in his action as an indigent person then he is bound to pay the court fee of the
respective court, and the remaining damages have to be borne by the State Government as if
they had committed the wrong. Whereas if indigent person won the case then he cannot be
held liable to any kind of expenses, fee or damages.

The object of order 33 and order 44 was to provide justice to every individual and financial
disability should not act as a barrier. However, assigning the benefit of these provisions
without scrutiny would surely lead to wide scale misuse. Thus, it is imperative that every case
is analysed in a proper manner so as to provide assistance to the one’s in need and prohibit
the misuse of the same.

1ST INTERNAL ASSESSMENT- CIVIL PROCEDURE CODE Page 6

 SUITS BY INDIGENT PERSONS- CIVIL PROCEDURE CODE

BIBLIOGRAPHY

BOOKS

 The Code of Civil Procedure by Mulla (Volume 4)

 The Civil Procedure with Limitation Act, 1963 by C.K.Takwani, 7th Edition
 The Code of Civil procedure by Sukumar Roy, 3rd Edition
 Code of Civil Procedure by Taxmann, 2018 Edition

JOURNALS

 Suits by Indigent person an critical analysis under Code of Civil Procedure by G.

Sanjay Bashiam & Mr. Vishnunath, IJRAR (Vol. 4, Issue 4)

WEBSITES

 www.manupatra.com
 www.heinonline.org
 www.scconline.com
 www.lexisnexis.com
 http://www.legalblog.in/2011/07/indigent-person-under-code-of-civil.html

1ST INTERNAL ASSESSMENT- CIVIL PROCEDURE CODE Page 7