Suit by or against indigent persons – Order XXXIII

By | May 13, 2017
Order XXXIII – Suit by or against indigent persons
  1. Such provision has been made so that poor people may seek relief by way of filing civil suits and they are not made to undergo hardships.
  2. These provisions exempt a person from paying the court fee at the time of presentation of his plaint and allow him to proceed forma pauperis subject to certain conditions.
  3. Rule 1 defines an indigent person as one who-
  • Does not have sufficient means to pay the court fees prescribed for the suit
  • Where no court fees is prescribed, such person who is not entitled to property worth Rs.1000
  1. In both these cases, the property which may not be attached for execution of a decree or the subject matter of the suit shall be exempt while calculating whether the person is an indigent person.
  2. However, property acquired after filing the application to sue as an indigent person and before the court gives a decision on such application shall be taken into consideration.
  3. Where the plaintiff sues in a representative capacity, the means he possesses in such capacity shall be considered.
  4. The word person in such case shall also include a juristic person. (case law)
  5. Every question as to whether or not a person is an indigent person shall be determined by the chief ministerial officer of the court or in a manner in which the court directs. The court may either adopt the report of the officer or may make a separate enquiry. (Rule 1-A)
  6. Rule 2 provides that every application to sue as an indigent person should contain the same particulars as that of a plaint. It must also contain a statement as regards the immovable and movable property possessed by the person and the estimated value of the same.
  7. This must be signed and verified in the same manner as pleadings are verified.
  8. The application may either be presented in person by the applicant or by his agent, where he is exempted from appearing before the court. (Rule 3)
  9. Where the application is in a proper form and has been duly presented, the court may examine the applicant where he appears in person or his agent as regards the merits of the claim and the property of the applicant. (Rule 4)
  10. The court may even issue commissions for examination of the applicant where he is exempted from appearance and the application is presented by the agent.
  11. The application stands to be rejected in the following cases-
    • When it has not been filed in the manner prescribed
    • When the applicant is not an indigent person
    • Where the applicant has within 2 months before filing the application disposed off his property fraudulently or he has done so to be able to sue as an indigent person. However, where even if the property was not disposed off, the applicant would have been an indigent person, the application will not be rejected.
    • Where the applicant enters into an agreement with another person with respect to the subject matter of the property and thus such person gets an interest in the subject matter.
    • Where any other person has entered into an agreement with him to finance the litigation.
    • Where the allegations made in the application shows no cause of action.
    • Where the allegations made in the application show that it would be barred by any law for the time being in force.
  1. Thereafter, the court shall fix a day where the applicant shall be allowed to put forth evidence showing that he is an indigent person. (Rule 6)
  2. At least 10 days notice must be given to the government pleader and the opposite party in such cases so that they may try to disprove the applicant’s claim of being an indigent person.
  3. At the hearing, the court shall examine the parties as well as their witnesses. (Rule 7)
  4. The witnesses will only be required to be examined as regards whether or not the applicant is an indigent person and whether or not the applicant has disposed off any property fraudulently or to be adjudged an indigent person within 2 months before the application.
  5. The parties shall be examined as regards all matters specified under Rule 5 (grounds for rejection).
  6. The parties may also put forth any argument as regards the application or the evidence adduced.
  7. Thereafter, the court shall decide whether to allow or disallow the applicant to sue as an indigent person.
  8. Where the application is allowed, the application shall be treated as the plaint in the suit and ordinary proceedings as in a suit shall commence. However, the applicant will not be required to pay the court fees or any other fees as regards service of any process, appointment of a pleader, etc. (Rule 8)
  9. However, under Rule 9, such permission granted may be withdrawn on an application of the defendant or the government pleader.
  10. A clear notice in writing of such withdrawal must be given to the applicant.
  11. The application may be withdrawn where-
  • It is shown that the applicant’s conduct was vexatious or improper.
  • It is shown that the applicant has the required means and is not an indigent person.
  • It is shown that the applicant entered into an agreement with a third person as regards the subject matter of the suit and thus the third person has acquired a right as regards the property.
  1. Where the plaintiff succeeds in the suit, the court fees that would have been paid by him had he not been adjudged an indigent person shall be paid by such person as the decree may order to the State Government.
  2. Where the plaintiff (a) fails in the suit or (b) the permission granted to him to sue as an indigent person is withdrawn or (c) where the suit is withdrawn or dismissed because the summons on the defendant is not served properly due to the failure of the plaintiff to pay court fees or postal charges or because the plaintiff does not appear at the time of hearing, the court shall order the plaintiff or his co-plaintiff to pay the court fees which he would have had to pay had he not been an indigent person. (rule 11)
  3. Where the plaintiff or his co-plaintiff, suing as indigent persons die, the State Government may recover the court fees from the estate of the deceased. (Rule 11-A)
  4. In both the abovementioned cases (Rules 11 and 11-A), the amount shall be recoverable by the Collector when a copy of the order is forwarded to him. (rule 14)
  5. Where the application of a person to sue as an indigent person has been refused, he shall not be allowed to sue in such capacity at a later stage. (rule 15)
  6. However, he may institute an ordinary suit provided he pays the costs incurred by the defendant and the State Government in opposing his application.
  7. Such payment must be made either at the time of institution of the suit or at any other time as may have been specified. The court shall be at the discretion to extend such time period from time to time.
  8. Further, the suit will be deemed to have been instituted on the day the application to sue as an indigent person was filed.
  9. A defendant setting up a counter claim or set-off may even do so in the capacity of an indigent person. In such case all the provisions applicable to the plaintiff suing as an indigent person will become applicable to him. (Rule 17)
  10. Rule 18 empowers the Central or State governments to make provisions for providing free legal services to indigent persons.
  11. The High Court may implement the same with the leave of the State government.
  12. These provisions may state the nature and extent of legal aid, the matters to which they shall relate, the agencies which shall provide for legal aid, etc.

Submitted By 

Ankit

(Editor @ Legal Bites)

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