Indigent Person under Indian Laws

Introduction

The main purpose of embedding this Order XXXIII of the Civil Procedure Code, 1908 is to help the poorer section of the society who is deprived and cannot heir their lawyers. And also to provide equal treatment to all sections of the society according to Article 14 and for the fair trial of the case which is a fundamental right of any person as said Article 21 and Article 22. Taking into consideration the poverty rate of India this Order gives a chance to vulnerable sections of society to stand in front of the court for seeking justice and a fair trial by the principles of Natural Justice.

Meaning of indigent person

An indigent person means any person who fulfils the conditions provided under Order 33 Rule 1 which is as follows:-

1. Any person who has no means to pay the Court fees prescribed by the law for the plaint in a suit; and,
2. He has not entitled to any property worth 1000 rupees where no fees are prescribed.

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 of whether or not an applicant is an indigent person.

The case related to an Indigent person

The Supreme Court of India has settled the issue that, whether a public company can file a suit as an indigent person while holding the judgement of UOI v. Khader International Construction, held that, the word “person” has to be given its meaning in the context in which it is used. It refers to a person who is capable of filling a suit and this being a benevolent provision; it is to be given an extended meaning. Therefore, a public limited company, which is otherwise entitled to maintain suit as a legal person, can every well maintain an application under Order XXXIII, Rule 1, CODE OF CIVIL PROCEDURE, 1908.

The word “person” mentioned in Order XXXIII includes not only a natural person but other judicial persons also.

Articles Supporting Indigent Person

Free legal aid is provided both under Fundamental Rights as well as DPSP.

1. It is embedded under Article 22 of Part III of the Constitution.
2. It is a facet of Article 21 as well. It was firstly propounded in the case of Hussainara Khatoon.
3. It is provided under Article 39A (DPSP).

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 mentioned 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.

Once the application fulfils 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.

Order XXXIII, Rule 5 of CPC 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.

Under Order XXXIII, Rule 7 of CPC provides for the procedure of hearing which shall be carried by the Court. 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 them 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.

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.

Procedure Where Indigent Person Fails

Rule 11 of Order 33 of CODE OF CIVIL PROCEDURE, 1908 deals with this aspect of Suits by an indigent person. 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 defendants to appear and the answer has not been served upon him in consequences of the failure of the plaintiff to pay the court fee or postal charges, chargeable for such services 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.
3. The Hon’ble Supreme Court in ML Sethi v. RP Kapoor observed that the provisions of Order 11 Rule 12 involving the discovery of documents would apply to proceedings under Order XXXIII of the Code of Civil Procedure.

In Dhanalakshmi v. Saraswathy case, the plant was found to be undervalued. So, it was returned for presentation in the court along with proper valuation and court fee. A time of one month was granted for doing so and the plaintiff filed the plaint within the stipulated period. Subsequently, the plaint was presented in the Sub-Court along with a petition seeking leave to sue as indigent persons to which the court observed that though the petition was filed under Order XXXIII Rule 1, one cannot say that the application filed under Rule 2 seeking permission to file the suit as indigent persons might not be rejected as provided in Rule 5 of Order XXXIII CPC. A similarity was drawn between Order XXXIII Rule 5 CPC and Order VII Rule 11 CPC. While Order VII Rule 11 is used in the rejection of plaint, Order XXXIII Rule 5 deals with the rejection of an application filed for permission to sue as indigent persons.

Inquiry into the means of an indigent person

Rule 1A of Order 33 states that the Chief Ministerial Officer of the court has the authority to do an inquiry. The inquiry is conducted in the first instance to know if an applicant is an indigent person or not. It is upon the discretion of the court whether to accept the report submitted by such an officer or make an inquiry.

Cost Where Indigent Person Succeeds

Where the plaintiff succeeds in the suit, the court shall calculate the number of court fees that 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 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 an Indigent person, in a situation where a suit is filled by the indigent person for the realization of the full contractual amount from the government. The decree was passed in favour of the plaintiff. The direction was issued to the defendant State Government to pay the cost of the plaintiff as liability was imposed on the defendant to pay the court fee payable to Government, hence, proceedings initiated against the plaintiff for recovery of court fee was not maintainable.

Conclusion.

This Order is only introduced for providing legal aid for the poorer sections of the society but to the get benefit of this order, a person should be qualifying certain conditions which are mentioned above. So that it is not been misused by people. The basic aim of this order is to have a fair trial. But there is a lack of awareness among the people about legal aid services hence steps must be taken by government officials to make the public aware of their basic rights according to 21. Being financial, not fit curtail the right of the person and leave them helpless.