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Suits by Indigent Person

Objectively analyses the legislation of suits filed as an indigent person. In addition to the justice provided to the society by the Judiciary, The Indian constitution has provided every person with the provisions of free legal assistance to let them reach that justice provided despite the economic conditions of individuals.

The main point of this research paper is to clarify in depth the rights, duties, and liabilities of an indigent individual. The objective of this research paper is to critically survey the procedure of filing as an indigent person. This paper critically analyses the hindrances faced to access to justice. The paper is divided into 3 chapters which answer, firstly, is the cost of litigation a hindrance to access to justice, secondly, how Civil Procedure Code, 1908 avoids this kind of hindrance by further understanding the eligibility of who is entitled to sue as an indigent person and the liability of such indigent person.

Thirdly, the paper discusses the procedures involved in filing a suit and application as an indigent person. Some suggestions were put forth by the researchers to avert the hindrance and moved forward for availing natural justice followed by a bibliography of the resources taken for the research paper.

Introduction
To no one will we sell, to no one will we deny or delay right or justice.[1]
Order XXXIII of the Civil Procedure Code, 1908 (hereinafter as CPC) deals with Suits by Indigent Persons. An indigent person is one who is not financially stable to proceed with the filing of a suit. Earlier the suit was also referred as 'a pauper suit' but due to social standards it has been renamed. Order XXXIII, Rule 1 defines an indigent person. Under these provisions the aim is, without payment, to make it possible for persons too poor to pay Court fees. A party seeking an exemption from the court fee shall satisfy the Court with one important aspect, i.e. the fact that it is not able to afford Court fees.

It is not enough for the party to make a prompt declaration in this respect, it is a legal requirement that the statement be proven for the Court to be satisfied.[2] The court will also take into consideration the properties bought by the indigent person during the application filed. Order XXXIII, Rule 5 sub-clause (f) of the CPC mandates to determine whether the suit is time-barred by any law for the time being in force. And the complaint may be deemed to be subject to restrictions on the allegations in the request and the permission to sue as a poor person will be rejected.[3]

The purpose was deliberated in Sumathy Kutty v Narayani, where it was held, the real test to determine 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 to pay the requisite court fee.[4]

Chapter 1: Cost of Litigation - A Hindrance to Access to Justice

Before proceeding further, it would be apposite to refer to the concept of costs.
Costs signifies the sum of money which the court orders one party to pay another party in respect of the expenses of litigation incurred. Except where specifically provided by the statute or by the rule of Court, the costs of proceedings are at the Court's discretion.[5]

Justice Bowen in, Cropper v Smith, said, I have found in my experience that there is one panacea which heals every sore in litigation and that is cost.[6]

Most of the litigants consider seeking legal action is often quite complex and expensive, with inflated costs and spurious appeals impeding cases consistently. Access to Justice acts as a dream come true for a poor person only on the account of financial or similar constraints. Unlike prosperous clients, the majority of the people in India cannot afford to spend a hefty amount on litigation. It acts as a crippling hardship to many, at the lower level. The laws governing costs are also embedded in sections 35, 35A, and 35B of the CPC.[7]

To afford a good lawyer a regular salary-earner has a lot to suffer. The challenge here does not end, government abuse, excessive trips to courts are on the rise. In India, many people fail to seek justice for years. Some people are battling the case for years , or even decades, while many do not even think about going to court to fix their problems. Extensive litigations, exorbitant counsel fees and an almost non-existent legal service structure have made the average citizen unavailable to one of the world's largest justice structures.

It is important to talk of Procedural Law. It is one of the key roles of our government to ensure justice and the right to access to courts. The maxim, Ubi Jus Ibi Remedium, means that there must be a solution where there is a right. This impediment to access requires development if this approach is rejected. All have fair rights, but sadly the courts are resource-based, a complicated, expensive, and late legal procedure that is dividing the disadvantaged.

 A stronger resource worker will have a good verdict. It is the State's responsibility to annul complications as a cause of the decision. It is therefore less accessible for ordinary people in the complex legal process. If you go to court and receive an adjournment, you must pay the counsel for the second hearing. While the lawyer consents to do so for a limited fee, secret costs often occur. In Hussainara Khatoon v. The State of Bihar, it was held that for any person who is unable to afford a lawyer due to poverty, it is the duty of the State to provide the person a lawyer.[8]

Free legal assistance occurs in India, however, but seldom operates. Under Article 39A of the Constitution of India[9], the State shall ensure that justice is promoted on an equal footing by its service and, in particular, grants free juridical assistance, by appropriate laws, or schemes or in some other manner, to ensure that there are no economic or other disability resources available for any person to achieve justice. Articles 14[10] and 22(1)[11] of the Constitution of India also make it mandatory for the Executive, on an equal opportunity basis, to ensure equality before the law and to uphold justice. There have been many organizations established for this reason, but they are of no help.

Order XXXIII, Rule 1 of the CPC provides for a suit filed by indigent persons.[12] The provisions of Order XXXIII encourage and enable poor people, without payment of any court costs, to initiate and prosecute suits. The order waives the court charge at first instance and allows them to prosecute their suit in forma pauperis if certain conditions are complied with.

There are 2 qualifications to be an indigent person:
  1. The person has no means to pay.
  2. The property must value less than INR 1000.

These qualifications come into the picture in 2 situations:
No means to pay becomes a qualification to be an indigent person if fees have been prescribed. If no fees have been prescribed, an indigent person will be declared where the property is less than INR 1000.

The 240th Law Commission Report stated:
A litigant, who starts the litigation, after some time, being unable to bear the delay and mounting costs, gives up and surrenders to the other side or agrees to settlement which is something akin to creditor who is not able to recover the debt, writing off the debt. This happens when the costs keep mounting and he realizes that even if he succeeds, he will not get the actual costs. If this happens frequently, the citizens will lose confidence in the civil justice system.[13]

It is not that the apex court is not aware of these situations, it is. In Vinod Seth vs Devinder Bajaj, the apex court observed, Under no circumstances, costs should be a deterrent to a citizen with a genuine or bona fide claim, or to any person belonging to the weaker sections whose rights have been affected, from approaching the courts.[14]

Similar views were stated in Ashok Kumar Mittal vs. Ram Kumar Gupta,[15] and it was discussed that due to lack of provisions governing costs has ensued in an increase in frivolous suits. Also stated, following Alternate Dispute Resolution Mechanism will likely fail in absence of the provisions governing costs.

There has been unapproachable to access justice. The pendency of the suits, costs, complexities, lack of consciousness has crippled the legal system.[16] Many people are still in a dilemma that there is no availability of justice to them in respect to how the law and legal system works. For them, the law remains a mystery and justice remains invisible.
Therefore, given the above statements, yes, the cost of litigation undeniably acts as a hindrance or the barrier to access to justice.

Chapter 2: How Civil Procedure Code avoids this Hindrance

The support that CPC extends for an indigent person is an exemption from court fees. Only because a person is not able to pay a court fee, he shall not be denied justice.[17] He can come before the court, true that he is indigent, and then continue with the case without paying the court fee. But the court does not readily agree, the moment a person makes an application to be declared as an indigent person, the court conducts its inquiry into it and after satisfaction only, he shall be declared an indigent person.

Further, the indigent status of the person can be reviewed at any stage of the proceedings. If he has overcome the indigency due to changed circumstances, the person shall be asked to pay the court fee and the status of indigency will be withdrawn.

Poverty should not be the cause for the refusal of justice. The object and purpose of the CPC is to enable a person, who is ridden by poverty, or not possessed of sufficient means to pay court fee, to seek justice. Therefore, access to justice cannot be denied to an individual merely because he does not have the means to pay the prescribed fee. The fee could be exempted if he is inefficient.

Order XXXIII, Rule 16 of CPC, provides for the costs of an application to sue as an indigent person shall be the costs in the suit.[18]

According to Order XXXIII, Rule 10 of CPC, if the plaintiff (indigent person) succeeds in the suit, the court will calculate the amount of court fee which would have been paid by the plaintiff if he had not been permitted to sue as an indigent person. [19]

According to Order XXXIII, Rule 11, and 11-A of the CPC, 'if the plaintiff (indigent person) fails in the suit, the court shall order the plaintiff to pay court fees and costs.'[20]
The state would take all the steps to recover the court fee payable to the plaintiff. The possible reason could be frivolous litigations. The court fee shall be a first charge on the subject matter of the suit. Order XXXIII of the CPC only defers the payment of the court fees.

An indigent person is also authorized to take up an appeal under Order XLIV, Rule 1 of the CPC by presenting an application along with a memorandum of appeal with all the grounds available as to an ordinary person, and an indigent person can also file cross-objections.[21]

The effect has been discussed in the following cases:
In RV Dev v Chief Secretary, Govt of Kerala, it was held that the payment of court fee as the scheme is merely deferred. It is not altogether wiped off.[22]

In Union Bank of India v Khader International, it was held that Order XXXIII is merely an enabling provision that allows the filing of a suit by an indigent person without paying the court fee at the initial stage. [23]

The Limitation Act also plays an important part in the indigency suit as it prescribes a particular time limit within which the suit must be filed. As per Section 13, Limitation Act, 1963, in the calculation of the limitations period prescribed for all proceedings, and in all cases, where a request for a leave to sue or a recourse has been made and rejected, the application for leave to sue or the appeal as a pauper is excluded and the Tribunal may, by payment of the prescribed Court fee, exclude the time during which the applicant has proceeded in good faith with his application for such leave.[24]

The section expressly stipulates that the time for application in forma pauperis shall be bona fide until such time as the applicant rejects the restriction of action or appeal and that the court fee payable to the applicant would also be treated as if that fee had been paid in the first instance. The fee of the Court should be paid in the time between the initial submission of the suit and the request, and the initial expiry of the limitation period.

Where an application is made to proceed as a pauper, the plaintiff shall have the competence to pay the Court fees, with the permission of the Court, during the pending proceedings and upon payment of such court fees it shall be held that the proceedings were prescribed the day when the application was first made.

In Bashir Ahmad v. Rashida Khatoon, it was held that:
appeal for leave or appeal to the court as a pauper is of no validity and no effect on the payment of the court fee. The time required to pay the Court of Law was the same as if the court fee in the first instance had been paid.[25]

In P. Sreedevi v. P. Appu, it was held that:
Section 13 of Limitation Act, 1963 concluded that no time limits are laid down and the Court may extend the time at its discretion to the extent it considers appropriate. But it should be demonstrated that, when presenting the application as a pauper, the applicant acted in good faith.[26]

Thus, The Civil Procedure Code avoids this hindrance as stated above.

Chapter 2.1: Entitled to sue as an Indigent Person

Under this Rule, an indigent person is entitled to sue. Such an indigent person is also described under this order XXXIII, Rule 1 of the CPC.

An indigent person is a person who does not have adequate means of paying court fees and is unable to take any action against other person and is also not entitled to property worth 1,000 rupees other than the property exempted from attachment in the course of the execution of a decree and the subject-matter of the action.

Factors such as the job status of an individual and overall income, including retirement benefits in the form of a pension, the possession of debt-free assets and the overall indebtedness of an individual and financial aid may be taken into consideration to decide if a person has appropriate or indigent means of paying the required court fee. The term 'sufficient means' in Order XXXIII, Rule 1 of the CPC, therefore, refers to the ability or capacity of an individual to raise money in an ordinary course of living.[27]

In Manglu Chattar v. Maheshwar Bhoi, the appellant had instruments and materials for weaving and earned regular wages. There was no other evidence from the defendant's side to prove that the petitioners own any other property.

There is, therefore, no question that the appellants were all weavers and that their weaving materials consist of artisanal instruments. To figure out if they would be able to afford the court fee, these assets should not be considered. Also, the daily salaries they earn may not be considered. Based on the review referred to above, it should be held that the appellants were indigent persons and should therefore be entitled to sue as indigent persons.

The meaning of the word 'person' must be provided in the context in which it is used. It refers to a person who can file a suit, and an expanded interpretation must be given to this being a protective clause. An application under Order XXXIII, Rule 1 CPC, can therefore be very well maintained by a public limited company that is entitled to maintain a suit as a legal individual. The term 'person' referred to in Order XXXIII, Rule 1 of CPC includes not only a natural person but also other legal entities.

In Union Bank of India vs Khader International[28], the question raised was, whether a Company can sue as an indigent person under Order XXXIII, Rule 1 of CPC. It was held that a public limited company, which is otherwise entitled to maintain a suit as a legal person, can very well maintain an application as an indigent person under Order XXXIII, Rule 1 CPC.

In the first place, any inquiry into the question of whether a person is or an indigent person shall be made by the chief ministerial officer of the court unless the court orders otherwise and the court may adopt the report of that officer as its own finding, or may itself inquire into the respective subject matter.

Chapter 2.2: Liability of an Indigent Person

An individual who is allowed to sue as an indigent person is responsible for paying the court fee that he would have paid if he were not allowed to sue in that capacity, if he fails the suit at trial or even without a trial.

The court would determine the amount of court fee that the plaintiff would have paid if he had not been allowed to sue as an indigent person if that person prevailed in the suit, and that amount would be recoverable by the State.[29] Furthermore, it is provided that, if the lawsuit is dismissed, the State will also take measures to recover the court fee owed by the plaintiff and that court fee will be the first fee in respect of the case.[30]

Order XXXIII, Rule IX of CPC allows for a contingency where, while initially allowed to sue as an indigent person, the plaintiff ceases to be an indigent party after the suit is instituted. When the applicant fails to be an indigent person, he is ordered to pay the court fee that he would have paid if a non-indigent person had to. It is a matter of the court's discretion if they wish to displease the defendant.

In Ganga Dahal v. M.T.,Gaura,[31] the issue of the plaintiff partially failing of suit came before the Allahabad High Court. a division bench of the held that the legislature, under Rule X of Order XXXIII of the CPC, deals with the case of an indigent claimant who succeeds in the case and, under Rule XI, with the case of an indigent claimant who does not succeed in the case.
In such cases, there is no special rule in which a plaintiff has partly succeeded and partly lost.

The court is probably meant to deal with such a case by incorporating the terms of the two laws. It is clear that if the plaintiff who is entitled to bring the case as an indigent person succeeds in the part of the lawsuit, the court cost payable by the plaintiff for the lawsuit must be assigned to the plaintiff and the defendant in proportion to the success of each party. Accordingly, the liability of the plaintiff who has filed a suit as an indigent person or in the forma pauperis to pay the court fee if he completely succeeds in the suit and to pay the court fee in proportion to the success of the suit 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 XXXIII of CPC.
The problem of indigence is connected to the payment of court fees. The principal issue of the state government is the payment of court costs and the imposition of liability on indigent persons as required.

Chapter 3: Process of filing a suit as Indigent Person
An application filed for exemption of suit by an indigent person is been examined and processed as mention under Order XXXIII Rule 2 to rule 8, of the CPC.
  • Application
    Indigent parties, in the first place, apply to the Court for an exemption from payment of the Court's fees. The application before the Court should contain the details sought concerning the complaints in suits; the schedule of movable and immovable property belonging to the claimant with its approximate value; and the schedule shall be signed and checked in the manner specified for the signature and verification of the pleadings according to Rule 14 & 15 of Order VI.[32]

    Once the application fulfills the above conditions, either the applicant in person or his designated representative shall properly apply it to the Court if the applicant is exempted from presence by the Court of First Instance. Following receipt of the application, the Court may examine in person the applicant or his agent concerning the validity of the claim and the property of the applicant.[33]

    Order XXXIII, Rule 5 of CPC[34] provides that the Court, in the circumstances referred to in any of the provisions of clauses (a) to (g) of the Rule shall refuse the application for leave to sue as an indigent person. Clause (c) of Rule 5 specifies that an application for permission to sue as an indigent person shall be rejected by the court if any property has been disposed of fraudulently or to be able to apply for permission to sue as an indigent person within the next two months before the submission of the application.[35]

    Under Order XXXIII, Rule 7 of CPC provides for the procedure of hearing which shall be carried by the Court[36]. Any investigation into the problem of the indigence of such an applicant shall be carried out by the Court. After the court has heard the claims of the party, processed the evidences and examined the witnesses, the Court would then either allow the plaintiff to sue as an indigent individual or refuse to allow him to do so.[37]

    Where an application is permitted, it shall be numbered, registered, and considered to be a complaint in the suit as per Order XXXIII, Rule 8 of the CPC.[38]
     
  • Appeals
    Any person entitled to file an appeal who is unable to pay the fee charged for the memorandum of appeal may file an application followed by a memorandum of appeal and may file an appeal as an indigent person, subject to the provisions relating to indigent person suits in all matters, including the filing of such applications, to the extent that those provisions are applicable.[39]

    Where an application for appeal as an indigent person is refused according to Rule 1, the Court may, at the same time as it rejects the application, allow the applicant to pay the required Court fee within such time as may be fixed by or extended by the Court from time to time; and upon such payment, the memorandum of appeal in respect of which that fee is payable shall have the same force and effect as if the fee had been paid in the first part of the application.[40]

Conclusion:
An indigent person is one who, either does not have adequate means to pay court fees or is not entitled to property worth one thousand rupees. If an Indigent person fails to pay the court fee in a suit filed by him, the State Government must bear the remaining damages. If the case was won by the indigent party, then he should not be held responsible for costs, penalties, or damages.

Basically, what it has provided is the basic provision for the excessively poor individuals, making it difficult for them to file a suit. The legal approach behind this agreement is to allow an individual to bring his case of alleged breach of cause of action to the court, no matter from what their economic condition is. It not only protects Bonafide cases of an indigent plaintiff by natural justice but also protects the interest of the revenue and protects the defendant from legal abuse.

The suggestion of the researchers to slash this hindrance is to educate and create awareness about such issues. Reduction in the cost of litigation, and improvement in the quality of justice will make it accessible even for the needy ones and lastly, Pro-Bono work must be given equal prominence.

End-Notes:
  1. George, James P. "Access to Justice, Costs, and Legal Aid." The American Journal of Comparative Law 54 (2006): 293-315. Accessed October 24, 2020. http://www.jstor.org/stable/20454541
  2. Thanappan v P. Subramanian, 2019 SCC OnLine Mad 13122.
  3. Ancient Infra-Tech Pvt. Ltd. v National Buildings Construction Corporation Ltd., 2019 SCC OnLine Del 8153.
  4. AIR 1973 Ker 19.
  5. Halsbury's Laws of England, 4th Edition., Vol 12, P 414.
  6. (1884) 26 Ch. D. 700 (CA).
  7. Section 35,35A and 35B, The Code of Civil Procedure, 1908.
  8. AIR 1979 SC 13690.
  9. Article 39A, The Constitution of India, 1950.
  10. Article 14, The Constitution of India, 1950.
  11. Article 22(1), The Constitution of India, 1950.
  12. Order XXXIII, Rule 1, The Code of Civil Procedure, 1908.
  13. Law Commission of India, Costs in Civil Litigation, Report No. 240, May 2012, available at http://lawcommissionofindia.nic.in/reports/report240.pdf (Last visited October 24, 2020)
  14. (2010) 8 SCC 1.
  15. (2009) 2 SCC 656.
  16. Ms. Komal Audichya and Ms. Nikita Audichya, Expanding Access to Justice to Reach the Poor and The Marginalized Communities, Bharati Law Review, Oct-Dec 2016. Last visited: October 24, 2020.
  17. A.A. Haja Muniuddin v. Indian Railway, (1992) 4 SCC 736.
  18. Order XXXIII, Rule XVI, The Code of Civil Procedure, 1908.
  19. Order XXXIII, Rule X, The Code of Civil Procedure, 1908
  20. Order XXXIII, Rule XI and XI-A, The Code of Civil Procedure, 1908
  21. Order XLIV, Rule I, The Code of Civil Procedure, 1908
  22. (2007) 5 SCC 698
[22] .
[23] (2001) 5 SCC 22.
[24] Section 13, The Limitation Act, 1963.
[25] AIR (1975) All. 286.
[26] AIR (1991) Ker. 76.
[27] Dr. Neena Mohan v John Varghese, 2019 SCC OnLine Ker 13269.
[28] Supra Note at 23.
[29] Order XXXIII, Rule X, The Code of Civil Procedure, 1908.
[30] Suits by Indigent persons, sid201291, Legalserviceindia, Last accessed: October 24, 2020.
[31] (1916) 35 Ind Cas 46.
[32] Order XXXIII, Rule 2, The Code of Civil Procedure, 1908.
[33] Order XXXIII, Rule 3, The Code of Civil Procedure, 1908.
[34] Order XXXIII, Rule 5, The Code of Civil Procedure, 1908.
[35] Andrews v. Hassan & another, AIR (2006) Ker 427.
[36] Order XXXIII, Rule 7, The Code of Civil Procedure, 1908.
[37] All About Suits by Indigent Persons under Code of Civil Procedure, Tarveen Singh Nanda, 07 Jun 2020, available at https://www.latestlaws.com/articles/all-about-suits-by-indigent-persons-under-code-of-civil-procedure/#:~:text=Thus%2C%20Order%20XXXIII%20enables%20the,to%20institute%20suit%20forma%20pauperis. Last accessed: October 24, 2020.
[38] Order XXXIII, Rule 8 Code of Civil Procedure, 1908.
[39] Order XLIV, Rule 1, The Code of Civil Procedure, 1908.
[40] Order XLIV, Rule21, The Code of Civil Procedure, 1908.

Written By: Aadarsh Lunia and Satya Sai Srija

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