[VOLUME 4 I ISSUE 4 I OCT.

– DEC 2017] e ISSN 2348 –1269, Print ISSN 2349-5138

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Suits by Indigent person an critical analysis under Code of

Civil Procedure
G. Sanjay Bashiam* & Mr. Vishnunath**
*Student, Saveetha School of Law, Chennai, Tamil Nadu.
**Assistant Prof., Saveetha School of Law, Chennai, Tamil Nadu.
Received Sept. 25, 2017 Accepted Nov. 11, 2017

ABSTRACT The paper deals with the provisions and leagal status of an Indigient person (i.e) A personwho is
not able to take care of himself it also states that no person should be left unheard it one of the main principal of Rule
of Natural Justice. The Indian constition has also provided with the provisions of free legal aid to every citizen. Order
33, Code of Civil Procedures deals with Suits by indegent person. The main aim of this research is to bring out in detail
about the rights, duty and liablity of an Indigent person.
KEYWORDS: Indigent person, pauper, pauered, code of civil procedure
INTRODUCTION
The expression “indigent person" as been as in indigent person does not operate to confer a
substituted for the expression “pauper” by the journal immunity from liability to pay cost and
aemndment act of 1976. A person is an indigent there is nothing the court exempting the indigent
person if he is not possessed of sufficin means, plaintiff from payment of cost. The Allahabad high
other than property exempt from attachment in court as taken the same view, but it as also held
the execution of degree and the sufficient matter that an order granting permission to sue as a
of the suit to enable in to pay the fee prescribed by indigent person and requiring as a condition that
law for the plaint in such suit. It does not include the plaintiff should pay the cost of the other side
such means on which the bare living of the party in erroneous. An application to sue as an
and his family dependents and also the reference individual person can be filed subsequent to the
to the capacity to rise fund by normal available filing Of the suit. Where is the suit is barred by any
lawful means. The plaintiff Suing in a civil court law the application provision under order 33 rule
must pay the court fee prescribed by law for the 1 is also not maintainable.The date of the suit
plaint and subsequent proceedings in the suit. would be the date of the presentation of the
This fees are prescribed by the court fees act of petition under order 33 rule 1. If the plaintiff is
1870 but a person may be to poor to pay the fee permitted to sue as a indigent person then the
and object of this order is to enable such a person court must pass an order to register the plaint and
to bring and prosecute suits withiut the payment number it and then summons to be issued to the
of fees. If the indegent person succeeds in the suit defendant for the settlement of the issues.
the government as the first charge on the subject OBJECTIVES
on the suit for the amount of the court fee which  To learn about the status of Indigent person.
would have been paid by him if he had not been  To learn about the procedure to be followed by
permitted to sue as an Indigent person. If the an Indigent person in filing an application.
indigent person fails in the suit the court should
 To analyse the diffrence between Suits by
order him to 8pay the court fees due by him.
plaintiff and suits by indigent person.
Where two person apply jointly to sue as indigent
persons and one is held to be a indigent person INQUIRY INTO THE MEANS OF AN INDIGENT
and other not, the later is not entitled to pursue PERSON
the suit in forma pauperis as the exemption in Every Inquiry into the question whether or not a
personal to the former. He must either pay full person is an indignet person shall be made, in the
court fee on the plaint or withdraw from the suit. first instance, by the chief ministerial officer of the
And order directing a indigent plaintiff to pay the court, unless the court otherwise directs and the
defendant in cash th cost occasioned by an court may adopt the report of such officer as it
amendment of the plaint and dismissing the suit is own finding or may itself make an inquiry in to the
default of such payment was held to pay to be only question.
improper. But the Ragoon High court as held that Content Of Application
a indigent person may be ordered to pay costs as a EveyApplication for permission to sue as an
condition of a adjourned. The madras high court indigent person shall contain the particulatrs
as also held that on order permitting a party to sue required in regarding to plaints in suits; a
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schedule of any movable or immvoable Property a. Where ot is not framed and presented the
belonging to the applicant with the estimated manner prescribed by rule 2 and 3.
value thereof shall be annexed and shall be signed b. Where the applicant is not an indigent person.
and verifued in the manner prescribed for the c. Where he has, within two months next before
signing and verification of pleadings. the presentation of application, disposed of any
Procedures property fradulently or in order to be able to
Rule 2 to 8 prescribes the procedure to be apply for permission to sue as an indigent person;
followed when the suit is proposed to be Provided That no application shall be rejected if,
instituted as a indigent person. Rule 2 provides for even after the value of property disposed of by the
signing and verfication of the plaint. This rule is applicant is taken into account.
sufficiently complained with the application for d. Where his allegations do not show a cause of
permission is accompanied by a seperate plaint action.
where the plaint contains all the necessary e. Where he has entered into any agreement with
particulars and as been properly verified. The non reference to the subject of the proposed suut
verification of the schedule of properties does not under which any person as obtained an interest in
entile a rejection of the application where the such subject matter.
contents of the petition have not been verified but f. Where the allegation made by the applicant in
a seperate affidavit in which the statements the application shows that the suit wuold be
contained in the application are stated to be true, bought by any law for the time being in force.
has been filed, the same can be treated as part of g. Where anyother person as enter into an
the application. agreement with him to finance the litigation.
Examination Difference Between Suit By Plaintiff And A Suit
The rule contemplates examination of two kinds By An Indigent Person:
namely A plaintiff who files the suit by presentation of
1. The examination of the applicant which may, as plaint pays the required Court fee along with
indicated in the rule be regarding plaint. Whereas, the person filing a suit as indigent
a. The merits of the claim person as to obtain the permission of the
b. Pauperism, & competent Court to file a suit as forma pauperis
2. The examination of the persons other than the (indigent person). If the indigent person succeeds
applicant which should be confined to pauperism the Court. Government shall have the first charge
only as indicated by tge provisions by rules 6 and over the fruits of the suit to recover Court fee from
7. Persons other than applicant cannot be the indigent person.
examined on the merits of the applicants claim. WITHDRAWALOF PERMISSION TO SUE AS AN
When an applicant is a minor it is sufficient to INDIGENT PERSON
examined the next friend. The court may on the applicantion of the
Stages Of Inquiry defendant or of the government pleader of which
On application for a permission to file a suit as an seven days prior notice in return as been given to
indigent person, the first stage examination of the the plaintiff, order that the permission granted to
petition under order33 rule 4 at which stage the the plaintiff to sue as an indigent person be
court can suo motu can reject the petition on any withdrawn
ground specified in order 33 rule 5. If the petition a. If he is guilty vexatious or improper conduct in
Is not so rejected the second stage is noticed to the the course of the suit
opposite party and a fixation of the date under b. If it appears that it his means or such that he
order33 rule 7 for evidence regarding the ought not to continue to sue as an indigent person
application. At this second stage the applicant can c. If he has entered into any agreement with
let him evidence that tha petition is not subjected reference to the subject matter of the suit under
to any of the prohibitions mentioned in order33 which any other person as obtain an interest in su
rule5 and it is equally opened to show that the cn subject matter.
petition is so object. In deciding the questions Of The object is to re-open the matter of pauperism.
grant of leave to sue as an individual person the This rule provides for a contingency where the
question whether the suit as framed is plaintiff the originally permitted to sue as an
maintainable and competent must be decided first indigent person ceases to be a indigent
it cannot be left for consideration during trail. It subsewuent to the institution of the suit. It as
goes to very root of the matter clearly provided that on the plaintiff ceasing to be
Rejection Of The Application indigent person the court shall order him to pay
The court shall reject an application for the court fee which would have been pay by him if
permission to sue as an individual person
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he had not been permitted to sue as an indigent such amount shall be recoverable by the state
person. Once such an oder is made the court government from any party ordered by the decree
cannot proceed with the suit unless the court fee to pay the same, and shall be a first charge on the
payable on the plaint is paid by the plaintiff. The subject charge on the subject matter of the suit.
principle of res judicata is not applicable to This rule applies only when the suit has been
proceedings under this rule however it does not permitted to be instituted in forma pauperis.
authorise revocation of the passed order on the Futher the court as to order the payment of court
ground that even at that time tha plaintiff had fee on the amoubt claimed and not on the amount
sufficient means the court has no proper suo motu decreed being the court fee payable on the plaint
to dispauper the plaintiff. That can be done only had the plaintiff not been permitted to sue as
on the application of the defendant or the pauper.
government pleader. It is matter of discretion with PROCEDURE WHERE INDIGENT PERSON FAILS
the court whether it would dispauper the plaintiff. IN THE SUIT
Where leave to sue was given after notice to the Where the plaintiff fails in the suit or a permission
defendant who did not appear on application by granted to him to sue as an indigent person as
him, under this rule, dispauper the plaintiff in the been withdrawn or where the suit is withdrawn or
ground that he was possessed of sufficient means dismissed
on the date of the application is not maintainable. a. Because the summon for the defendant to
CLAUSE(a) appear and answer as not been served upon him
The disclosure by the plaintiff of life policy worth in consequence of the failure ofnthe plaintiff to
Rs.225 in a suit where the court fees were over Rs pay the court fee or if any chargable for such
500 was held not to justify his being dispauper service or to present copies of the plaint or
CLAUSE(b) concise statement.
Reciept of interim maintenance during the suit is b. Because the plaintiff doesnot appear when the
not a ground for dispaupering the plaintiff if it is suit is called on for the hearing
not enough to enable her to save the amount The court shall order the plaintiff to pay the court
required court fees nor can she be dispaupered fees which would have been paid by the plaintiff if
because she is living with the rich relative and he had not been permitted to sue as an indigent
appearing through eminent council. person.
CLAUSE(c) An order under this rule directing the pauper
If the plaintiff executes a mortage of the property plaintuff to pay the court fees can be made only in
in suit after he has been given leave to sue a the following four cases:
pauper, he is laible to the dispaupered. It is bit 1. Where the plaintiff fails in the suits;
necessary that the agreement should be 2. Where the plaintiff is dispaupered under rule 9;
champetours. i.e. his indigent status is cancelled;
Court To Assign a Pleader To An 3. Where the suit is withdrawn; or
Unrepresented Indigent Person 4. Where the suit is dismissed under the
1. Where the person who is permitted to sue as an circumstances specified in clause (a) or clause (b).
indigent person is not represented by a pleader Cost
the court may, if the circumstance of the case so This rule does not preclude the court from
required, assign a pleader to him. awarding a successful defendant is caused in a
2. The High court may, with the previous approval pauper suit. The court has full power under
of the state government make rule providing for section 35 to give and apportion cost in any
a. The mode of selecting pleaders to be assigned matter it thinks fit. Nothing in this rule limits or
underthe sub rule 1 otherwise affect the power conferred upon the
b. The facilities to be provided to search pleaders section 35 to give and apportion cost. It has been
by the court held that the description of the court under
c. Any other matter which is required to be or may section 35 empowers the court to order that the
be provided by the rule for giving effect to the court fees which would have to be paid by a minor
provisions of sub rule 1. plaintiff suing as an indigent person should be
paid by his next friend.
Costs Where Indigent Person Succeeds Death Of Plaintiff
Where the plaintiff succeeds in the suit, the court In Muthukumaran vs State of Tamil nadu,
shall calculate the amount of court fees which The plaintiff suing as an indigent person died and
would have been paid bybthe plaintiff if he had his legal representative where substituted. The
not been permitted to sue as an indigent person,
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suit was dismissed and the court pass an order to Defendant As An Indigent Person
recover the court fees from the legal Any defendant who desires to plead as setoff or
representative to held that the order need not the counter claim may be allowed to set up such claim
conferred to assests inherited by the deceased. as an indigent person, and the rules contained in
Procedure Where Indigent Person Suit Abates this order shall so far as may be, apply to him as if
Where the suit abate by the reason of the death of he were a plaintiff and his written statement were
the plaintiff or coplaintiff, the court shall order the a plaint.
amount of court fees which should have been paid Power Of Government To Provide For Free
by the plaintiff if he had not been permitted to sue Legal Services To Indigent Persons
as an individual person shall be recovered by the Subject to the provisions of thisorder, the central
state government from the estate of the deceased or state government may make such
plaintiff. supplementary provisions as it thinks it fits for
State Government May Apply For The Payment providing free legal services to those who have
Of Court Fees been permitted to sue as indigent persons.
The state government shall have the right at any The High court may, with the previous approval of
time to apply to the court to make an order for the state government makes rules for carrying out
payment of the court fees under rule 10, 11 or rule the supplementary provisions made by the cebtral
11A. or state government for providing free legal
State Government To Be Deemed A Party services to indigent persons referred to in sub
All matters arising between the state government rule(1), and such rules may include the nature and
and any party to the suit Under rule 10,11,11A or extent of such legal services, the conditions under
12 shall be deemed to be questions arising which they may be made available, the matters in
between the parties to the suit within the meaning respect of which, and the agencies through which
of section 47. such services may rendered.
Recovery Of Amount Of Court Fees CONCLUSION
Where an order is made under rule 10,11 or 11A In the end I would like to conclude the Paper, that
the court shall forthwith cause a copy of the my hypothesis was partially incorrect regarding
decree or order to be forwarded to the collector, the position of indigent person when he fails in the
who may, without prejudice to any other mode of suit brought by him, the hypothesis is that an
recovery, specified therein from the person or indigent person cannot be made liable to pay
property liable for payment as if it were arrear of anykind of damages or compensation, but
land revenue. according to Order 33 Rule 11 of Code of Civil
Refusal To Allow Applicant To Sue As Indigent Procedure, an indigent person cannot be held
Person To Bar Subsequent Application Of Like liable for any kind of damages other than the court
Nature fee, i.e. if a person fails in his action as an indigent
An Order refusing to allow the applicant to sue as person then he is bound to pay the court fee of the
an indigent person shall the a bar to any respective court, and the remaining damages have
subsequent application of the like nature by him to be borne by the State Government as if they had
in respect of same right to sue but the applicant committed the wrong.Whereas if indigent person
shall be at liberty to instutute a suit in ordinary won the case then he cannot be held liable to any
manner in respect of such right provided that tge kind of expenses, fee or damages
plaint shall be rejected if he does not pay, either at REFERANCE
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