Suits by An Indigent Person
Suits by An Indigent Person
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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Corpus Juris Secundum (20 C.J.S. Costs ' 93) American Jurisprudence (20 Am. Jur. 2d Costs ' 100)
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(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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Supra, Note 2
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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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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
UNIVERSITY INSTITUTE OF LEGAL STUDIES PAGE 10
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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.
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