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Legal Aid under the Code of Civil Procedure, 1908: An analysis of Suits by Indigent Persons

Lawyers have a license to practice law, a monopoly on certain services. But for that privilege and status, lawyers have an obligation to provide legal services to those without the wherewithal to pay, to respond to needs outside themselves, to help repair tears in their communities. -  U.S. Supreme Court Associate Justice Ruth Bader Ginsburg


Legal profession is regarded as one of the noblest professions in our society. It is through law that the wrongdoer gets punished and victim seeks justice. There are basically two branches of law i.e., civil and criminal; both of them are substantially and procedurally framed in India for securing fairness and uphold the rule of law.

The civil procedural law having been governed by the Code of Civil Procedure, 1908, it is a source of legal services to the poor and indigent. The Code under various provisions has imbibed the dictum of ‘Justice for all' but Order 33 has extensively dealt with indigence as a ground of legal aid. Since access to justice is expensive, there arise a question, on who will pay to render justice for the needy unable to even fulfill his basic needs? Justice P.N. Bhagwati rightly observed, The poor and illiterate should be able to approach the courts and their ignorance and poverty should not be an impediment in the way of their obtaining justice from the courts.

Order XXXIII and XLIV of the Code of Civil Procedure, 1908 enumerates provisions of legal service to the indigent persons. There are specified criteria for the acceptance of application as an indigent person and once an individual gets inserted as indigent, he can avail the services related to Court Fee thereupon. It is noted that civil judicature is limited to individual disputes as opposed to the criminal cases which are seen as harm against whole society. This however doesn't mean that they are less serious. It must be intended to know the real object behind such provision and henceforth realize the ground reality.

Introduction
India is a welfare State. The policies, legislations, enactments etc. in our country are governed by principles of social welfare. The aim of every legal system is ultimate justice to the aggrieved, thus, it becomes the duty of the authorities to fulfill it. The civil procedural law in India is also covered in such ambit. Legal Aid although extensively dealt in the Legal Services Authorities Act, 1987 can also be drawn from the provisions of the Code of Civil Procedure, 1908.

Under Section 2(1)(c) of the Legal Services Authorities Act, 1987, Legal Service includes the rendering of any service in the conduct of any case or other legal proceeding before any court or other authority or tribunal and the giving of advice on any legal matter; to provide free and competent legal services to the weaker section of the society was the basic object of enacting the aforesaid Act. Justice - social, economic and political, is our constitutional pledge enshrined in the preamble of our Constitution. The incorporation of Article 39-A in the Directive Principles of State Policy in the year 1976, enjoined upon the State to ensure justice on the basis of equal opportunity by providing free legal aid.

The Code of Civil Procedure, 1908 has two specific provisions which deal with legal aid viz., Order XXXIII which deals with Suits by indigent persons and Order XLIV which deals with Appeals by indigent persons. Order XXXIII contains 18 rules whereas Order XLIV contains 3 rules in total. It becomes a need to understand the balance of legal aid provided in civil suits to indigent persons with critical aspects thereof.

The legal aid in this aspect falling under civil judicature doesn't get paid proper heed because it primarily deals with property, money or office which is considered less grave than human life and society. But this doesn't defy the fact that civil procedural law need not be followed in essence. Every provision enshrined herein reflect the minds of the framers of the statute and its application is the duty of all the three organs of government. We shall try to discuss the features of Order XXXIII and LXIV thereby illuminating certain case laws on the subject matter. It is tried to enumerate the critical and suggestive parts in the end of discussion.

Order XXXIII Of The Code Of Civil Procedure, 1908: A Step Towards Legal Aid To The Indigent Persons

Order XXXIII of Code of Civil Procedure deals with suits by Indigent persons. It has three explanations. The First one deals with explanation of Indigent persons which is very relevant to understand who are entitled to the benefits of the Order. The second explanation clarifies the point of property entitlement of the person to whom explanation I applies. The last explanation clarifies the point when a person sues in representative capacity.

Background
The Order has a long history. In the reign of British King Henry VII, an Act was passed by the Parliament as a mean to help and speed poor persons in their suit. This was in fact a way to help the needy who couldn't afford payment of court fee. Thus on the discretion of Chancellor, the Act permitted the destitute to appear in Court without payment of usual fees. It enabled him to obtain writs original and writs of sub-peona free of charge. The Indian Legislature first dealt with the subject in 1939 and provisions with necessary additions and modifications, found a place in successive Codes of Civil Procedure.[i]

Substitution of the expression Pauper
The Report in its introductory on changes in Order XXXIII has said that the Code does not deal with subject of legal aid but provides for exemption of fees in respect of persons who are indigent, called by the inappropriate name of Paupers. Previously, the expression Pauper was used. Further, the expression Indigent person was substituted in places where the word pauper had occurred because it was inappropriate particularly after India wedded to a socialistic pattern of society.[ii]

Object of Order XXXIII

The basic object of Order XXXIII was widely discussed by Kerala High Court in Sumathy Kutty v. Narayani[iii], where it was observed that the real test is whether the petitioner is in a position in the ordinary course to convert his possessions, if any, into liquid cash without undue hardship and delay for the purpose of paying the requisite court-fee.

The three fold object of such provision is:
  • to protect bonafide cleans of an indigent person.
  • to safeguard the interest of revenue.
  • to protect the defendant from harassment.

Who Can File An Indigent Application?

It was held that pauper application should be filled by only natural person and into its ambit and scope judicial person also include. This is a settled position in UOI v. Khaders International Construction Ltd[iv]. It is well settled that the provisions of Order XXXIII, Rule 1, 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, is died, it cannot be said that afterwards his legal heirs can get benefit.

According to Rule 1 of Order XXXIII, suits may be instituted by indigent person. It further says that subject to the following provisions, any suit may be instituted by an indigent person.
Explanation I
A person is an indigent person:
  1. 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
  2. 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 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 sued 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

Application for Permission to Sue as Indigent

A person may sue as an indigent person only when the court so permits him. When the application is made for permission to sue as an indigent person, every inquiry shall be made in the first instance.

An application for permission to sue as an indigent person shall contain the following particulars:

  1. Particulars received in regard to plaint in suit.
  2. List of movable/immovable property belonging to the applicant with the estimated value.
  3. Signature and Verification.

In the case of Manglu Chattar v. Maheshwar Bhoi[v], according to the findings of the trial court, the appellant possessed of tools and weaving materials and they get daily wages. 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.

Rejection of Application

The Court shall reject an application for permission to sue as an indigent person:
  1. where it is not framed and presented in the manner prescribed by rules 2 and 3, or
  2. where the applicant is not an indigent persons, or
  3. where he has, within two months next before the presentation of the application disposed of any property fraudulently or in order to be able to apply for permission to sue as an indigent person:
    Provided that no application shall be rejected if, even after the value of the property disposed of by the applicant is taken into account, the applicant would be entitled to sue as an indigent person, or
  4. where his allegations do not show a cause of action, or
  5. where he has entered into any agreement with reference to the subject-matter of the proposed suit under which any other person has obtained an interest in such subject-matter, or
  6. where the allegations made by the applicant in the application show that the suit would be barred by any law for the time being in force, or
  7. where any other person has entered into an agreement with him to finance the litigation. [vi]

Procedure
When the court sees no reason to reject the application on any of the grounds as per Rule 5, it shall fix a day after notice to the defendant and the Government pleader for receiving such evidence as the applicant may offer in proof of his indigence, and for hearing any evidence which may be presented in rebuttal thereof.

The court questions the witnesses produced by both the parties and the applicant or his agent makes a full record of their evidence and hears arguments and after such hearing the court may permit or refuse to allow the applicant to sue as an indigent person[vii]. Where the application is approved it is numbered and registered and is considered as the plaint in the suit. The suit then proceeds in the ordinary manner, however the plaintiff is not liable to pay any court-fee.[viii]

Under Order XXXIII, Rule 9, it is open to the court on the application of the defendant to withdraw the plaintiff's permission to sue as an indigent person on the grounds specified. Where an individual, who is allowed to sue as an indigent person, is not represented by a pleader, the court may, as per the circumstances of the case, allot a pleader to him.[ix]

Where the plaintiff succeeds in the suit, the court will estimate the sum of court-fees which would have been paid by the plaintiff if he had not been allowed to sue as an indigent person, and such amount shall be recoverable by the State Government from any party ordered by the decree to pay the same[x].

But in a situation where a suit is filled by the indigent person for realization of full contractual amount from government and decree was passed in favour of plaintiff. Order 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 started against plaintiff for recovery of court fee was not maintainable[xi].

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.

Procedure where indigent person fails:

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 or dismissed:
  1. because the summons for the defendant to appear and answer has not been served upon him in consequence of the failure of the plaintiff to pay the court-fee or postal charges (if any) chargeable for such service 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. [xii]

Power of Government to provide free Legal Aid to indigent persons:

  1. Subject to the provisions of this Order, the Central or State Government may make such supplementary provisions as it thinks fit for providing free legal services to those who have been permitted to sue as indigent persons.
  2. The High Court may, with previous approval of the State Government, make rules for carrying out the supplementary provisions made by the Central or State Government for providing free legal services to indigent persons referred to in sub-rule (1), and such rules may include the nature and extent of such legal services, the conditions under which they may be made available, the matters in respect of which, and the agencies through which, such services may be rendered.[xiii]
     

Order Xliv: Appeals By Indigent Persons

Any person entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as an indigent person, subject, in all matters, including the presentation of such application, to the provisions relating to suits by indigent person, in so far as those provisions are applicable.[xiv]

Where an application is rejected under Rule 1, the Court may, while rejecting the application, allow the applicant to pay the requisite Court-fee, within such time as may be fixed by the Court or extended by it from time to time; and upon such payment, the memorandum of appeal in respect of which such fee is payable shall have the same force and effect as if such fee has been paid in the first instance.[xv]

Enquiry as to whether the applicant is indigent:

  • Where an applicant, referred to in rule 1, was allowed to sue or appeal as an indigent person in the Court from whose decree the appeal is preferred, no further inquiry in respect of the question whether or not he is an indigent person shall be necessary if the applicant has made an affidavit stating that he has not ceased to be an indigent person since the date of the decree appealed from; but if the Government pleader or the respondent disputes the truth of the statement made in such affidavit, an inquiry into the question aforesaid shall be held by the Appellate Court, or, under the orders of the Appellate Court, by an officer of the Court.
  • Where the applicant, referred to in rule 11, is alleged to have become an indigent person since the date of the decree appealed from, the inquiry into the question whether or not he is an indigent person shall be made by the Appellate Court or, under the orders of the Appellate Court, by an officer of that Court unless the Appellate Court considers it necessary in the circumstances of the case that the inquiry should be held by the Court from whose decision the appeal is preferred.[xvi]

Is Legal Aid A Necessity In Civil Law?

In Gideon v. Wainwright[xvii] and Argersinger v. Hamlin[xviii] decisions specify that free aid must be given in criminal trials to defendants in order for the restoration of constitutional principles established to achieve a fair system of justice, it can be argued that free aid should also be extended to apply to civil cases for low-income Americans, as representation is essential for fair and just trials. The problems of civil adjudication are by far solved through the attempts of alternative dispute resolution which have proved to be time saving and cost friendly. The Lok Adalats, Nyay Panchayats, Mediation Cells etc.

With regard to participation of lawyers in the system, civil legal aid lends itself to co-option of paralegals that can be trained to provide help this area. However, in criminal cases, a skilled lawyer becomes a necessity for providing procedural fairness. Much of a criminal trial is taken up with issues of procedure and proof which are beyond the grasp and understanding of the accused.

Order 33, Rule 5 provides for rejection of the application when it is not properly framed, when the applicant is not an indigent person or has disposed any property fraudulently, where his allegations do have shown a cause of action or is barred by law and when he is in an agreement with any other person who is financing the litigation.

Concluding Remark
While the three criteria namely, the economic status (means) test, the prima facie test and the interests of justice test, determine eligibility for legal aid in civil proceedings, such criteria are generally either not applied or are modified in their application to criminal proceedings. The miserable conditions in which poor find themselves can be alleviated to some extent by providing legal services to the poor.

It would be in these circumstances made a mockery of Legal Aid if it was left to a poor, ignorant and illiterate accused to ask for free legal service, free legal aid would become merely a paper promise and its purpose would fail. A big thanks to stalwarts like Justice Bhagwati and Iyer for their revolutionary step of promoting legal aid and services. The Code of Civil Procedure, 1908, envisages this noble idea and upholds the constitutional directive under Article 39A of Indian constitution.

End-Notes:
  1. 54th Law Commission Report p. 237
  2. Id.
  3. AIR 1973 Ker 19
  4. (2001) 5 SCC 22
  5. AIR 1981 Ori 153
  6. The Code of Civil Procedure, 1908, (Order XXXIII Rule 5)
  7. Vol 2, Mulla, Civil Procedure Code, 17th edition, B.M. Prasad, Lexis Nexis, Butterworth
  8. The Code of Civil Procedure, 1908, (Order XXXIII, Rules 6-8).
  9. The Code of Civil Procedure, 1908, (Order XXXIII, Rule 9A)
  10. The Code of Civil Procedure, 1908, (Order XXXIII, Rule 10)
  11. Vol. 1, Sir John Woodroffe & Amar Ali, Commentary On Civil Procedure Code, Edition 5.
  12. The Code of Civil Procedure, 1908, (Order XXXIII, Rule 11)
  13. The Code of Civil Procedure, 1908, (Order XXXIII, Rule 18)
  14. The Code of Civil Procedure, 1908, (Order XLIV, Rule 1)
  15. The Code of Civil Procedure, 1908, (Order XLIV, Rule 2)
  16. The Code of Civil Procedure, 1908, (Order XLIV, Rule 3)
  17. 372 U.S. 335 (1963)
  18. 407 U.S. 25 (1972)
  19. Image Courtesy : https://arstechnica.com/science/2017/01/encounters-with-poor-people-reduce-support-for-taxes-on-the-rich/
Written By: Vanshika Sharma

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