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Analysis of Order 33 of the Civil Procedure Code. 1908

The notion of justice evokes the rule of law and it refers to the resolution of conflicts by institutions that make laws and by those that enforce it. Justice implies fairness and the implicit recognition of the principle of equability [1].Access to justice is inherent in the concept of justice. The basic purpose which is intended to be served by providing access to justice are is to ensure that every person is able to invoke the legal processes for redressal, irrespective of social or economic status or other incapacity. Unless the poor and the weaker section of the society are able to take advantages of administration of justice and are able to assert for their rights, democracy cannot be said to be blooming. Legal aid is a noble approach to help the deprived and underprivileged [2].Legal Provisions in relation to Legal aid can be classified under three broad categories: (i) Constitutional [3](ii) Procedural [4](iii) Statutory [5]

This article deals with the legal provisions related to Legal aid under the Civil Procedure Code, 1908. Order 33 of CPCprovides for filing of suits by indigent persons. It enables persons who are too poor to pay court fees and allow them to institute suits without payment of requisite court fees.

Order 33, C.P.C, deals with the suit filed by Indigent persons. 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[6]. It was done in accordance to the recommendation of the Law commission in its 54th Report[7]. For institution of suits court-fee has to be paid. But, there are innumerable persons who owing to that poverty are unable to pay the court-fee, and to enable them to file suits exemption from court-fee is provided for under Order 33 of C.P.C.

The basic object of Order XXXIII was widely discussed by Kerala High Court in Sumathy Kutty v. Narayani, 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.[8]

The term “Indigent person” has been defined underOrder 33 Rule 1, a person is an indigent person if he does not have sufficient means other than property excused from attachment in execution of the degree, to enable him to pay prescribed fees. The Supreme Court of India in the case of UOI v. Khader International Construction has held that, the word “person” mentioned in Order XXXIII, Rule 1 includes not only a natural person but other judicial person such as a public limited company[9].

The claim should be presented to the court by the applicant in person, until he is exempted from appearing in court in which case the application may be presented by an authorized agent, who would answer all substantial queries involving the application. The court will examine the applicant or his agent regarding the merits of the claim and the property of the applicant[10].

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[11]. 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.[12]

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[13].

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[14].

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[15].

An Anomaly In Order 33 of CPC

Order33, 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 show 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.

When the petition filed asan Indigent person is registered as suit, the plaintiff gets on with the trial of the case. Either he has to succeedorfail — the inevitable consequences of any litigation. If he succeedsOrder33, Rule 10 provides that the amount of court-fee shall be recoverable by the State Government from any party ordered by the decree. This is a reasonable provision and none can find fault with the procedure set forth in it[16]. The hardship comes to the indigent person if he fails in the suit. The defeated indigent person at first suffers from the result of the case. More hardships are in store for him under Rule 11 which provides for a Procedure where Indigent person fails[17].

The provisions for payment of court-fee set forth in the section can be said to be reasonable whenthe permission granted to him to sue as an indigent person has been withdrawnorthe suit is withdrawnordismissed for default, as set forth thereunder. But the penalty of the provision for payment of court-fee on the plaintiff/indigent person because he fails in the suit on merits is unjust, shocking and is opposed to the principles of Natural Justice; unjust because he fails in the suit after contest. His position as an indigent person does not change and the poor does not become affluent overnight in view of the adverse result. His status remains the same irrespective of the result of the suit and hisbona fidesdo not undergo any change. The constitutional validity of the unreasonable provision is a matter to be tested.

Hence, this article suggest that Order 33, Rule 11, C.P.C can be amended deleting the sentence “Where the plaintiff fails in the suit”.

Thus on the application to sue as indigent person being granted, the plaintiff shall not be liable to pay court fee and in case he is not represented by a pleader, the Court may assign a pleader to him if the circumstances of the case so requires. Rule 18 of order XXXIII of the Civil Procedure Code states that the Central and State Government may make such additional provisions as it thinks fit for providing free legal services to those who have been allowed to sue as indigent persons. Rule 15 provides for provisions regarding refusal to allow applicant to sue as indigent person to bar subsequent application of like nature. The Order XLIV makes provisions in respect of appeals by indigent persons.[18]

The advocates Act 1961 also makes provision for Bar Council of India in exercise of its rule making power under Section 49 (1) (C) of the Advocates Act 1961 and under Rule 46 of Chapter II of part - 6 of the Bar Council of India to make a duty of an advocate to render legal aid to an indigent person who approach an advocate in his individual capacity. Supreme Court has emphasized the importance of Legal Aid to the poor and the needy from time to time in cases like Sheela Barse Vs. State of Maharashtra[19], Sunil Batra V. Delhi Administration[20]; M.H. Hoskot v. State of Maharashtra[21]; Hussainara Khatoon Vs. State of Bihar[22] and Khatri Vs. State of Bihar.[23]

[1] John Rawls,A Theory of Justice, 11, 1971
[2] Murlidhar,Law, Poverty and Legal Aid: Access to Justice, 1, 2004, at page 3.
[3] S.S Sharma,Legal Aid to Poor: The Law and Indian Legal System(Deep & Deep, 1993)
[4] Criminal Procedure Code, 1973, Sections 303, 304 & Civil Procedure Code, 1908 — Order 33
[5] Justice Ranganath Mishra:Supreme Court Legal Aid Committee, New Delhi — Its Aims, Activities and Achievement, (1995) 5 SCC J-1
[6] Civil Procedure (Amendment)Act, 1976
[7] Law Commission of India, forty-fourth Report on CPC, 1908, February 1973 ,
[8] Sumathy Kutty v. Narayani, AIR 1973 Ker 19
[9] UOI v. Khader International Construction , 105 COMP. CAS. 856 (SC)
[10] Civil Procedure Code , 1908, (Order XXXIII, Rules 2-4)
[11] Vol 2, Mulla, THE CODE OF CIVIL PROCEDURE, 17th edition, B.M. Prasad, Lexis Nexis, Butterworth
[12] Civil Procedure Code , 1908, (Order XXXIII, Rules 6-8).
[13] Civil Procedure Code , 1908, (Order XXXIII, Rule 9A)
[14] Civil Procedure Code , 1908, (Order XXXIII, Rule 10)
[15] Vol. 1, Sir John Woodroffe & Amar Ali, COMMENTARY ON CIVIL PROCEDURE CODE, Edition 5.
[16] P.K.Majumdar, COMMENTARY ON THE CODE OF CIVIL PROCEDURE, 1908, Edition 5, Orient Publishing company
[17] Sri R. Padmanabhan, Order 33, Civil Procedure Code- An Anomaly, (1992) 2 LW (JS) 59
[18] Takwani, C. K., CIVIL PROCEDURE, Edition 6, Eastern Book Company, Lucknow.
[19] AIR (1983) SC 378
[20] AIR 1978 SC 1675
[21] AIR 1978 SC 1548
[22] AIR 1979 SC 1369
[23] AIR 1981 SC 928

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