Central University of South Bihar

INDIGENT PERSON

Submitted byAKASH KUMAR

CUB 1313125005
5th semester
B.A.LL.B (Hons.)

S.NO

Contents

01

Literature Review

02

Research Methodology

03

Research Question

04

Introduction

05

Chapter I

06

Chapter II

07

Concluding Remarks

Literature Review

Books Referred:

The Code of Civil Procedure (CPC)

Prof. M.P.Jain

The Code of Civil Procedure (CPC) (in 2 Vols.)

V.V.Aiyer

The Code of Civil Procedure,1908 (CPC)

Private Publication

Text Book on the Code of Civil Procedure (CPC)

Sukumar Ray

The Code of Civil Procedure (CPC)

M.P.Tandon, revised by Shailender Malik

The Code of Civil Procedure, 1908 (CPC)

V.J.Rao

The Code of Civil Procedure, 1908 (CPC)

Lawmann

Websites Referred:

www.lawmin.nic.in

www.wrmin.nic.in

www.interstatecouncil.nic.in

www.jstor.com

Magazines and Newspaper:

The Hindu

The Indian Express

Firstpost

Frontline

Research Methodology:
Scope: This project seeks to undertake a comprehensive analysis of INDIGENT
PERSON as enshrined in Civil Procedure Code 1908 . As a natural corollary, the
researcher will try to present the different aspects of INDIGENT PERSON.

Focus: Given the nature of the subjects and the sheer number of concepts it deals
with either directly or indirectly, the researcher has restricted his analysis to those
aspects of the essay that he feels stand out in terms necessary for the full
understanding, and conceptual integrity. Factual discussion had to be given in
order to allow space to the researcher to present his personal perspective and
researcher also included relevant case laws to understand legal implications of the
project. The twin fetters of time and space have also restricted the scope and
coverage of this paper.

Research Aim and Objectives:

To illustrate the concept of Indigent person .

To examine the essentials required for Indigent person.

INTRODUCTION
Order 33 deals with suits filed by indigent persons. An indigent person is
defined in explanation one to Rule 1 according to which is a person is an
indigent person if he is not possessed of sufficient means other than property
exempted from attachment in execution of the degree, to enable him to pay
prescribed fees. An application is to be filled along with the suit for
permission to allow the applicant to file the suit as an indigent person. After

due inquiry the court however may reject the application for permission to file
the suit as an indigent person on the ground mentioned in Rule 5. A person
having been declared as indigent person can be disappeared on the ground
mentioned in Rule 9. Under Rule 18 the state government can provide free
legal service to indigent person.
Order 33 Rule 1 of the Code of Civil Procedure provides for instituting of
suits by indigent person, stating:
"1. Suits may be instituted by indigent person-- Subject to the following
provisions, any suit may be instituted by an indigent person.
Explanation I.--A person is an indigent person,-(a) 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
(b) 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.
Civil Procedure Code-Project Report
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 sues 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."
In A.A. Haja Muniuddin v. Indian Railway
11
, Honble Supreme Court has
observed:
"Access to justice cannot be denied to an individual merely because he does
not have the means to pay the prescribed fee."
In Union Bank of India v. Khader International Construction
22
Honble
Supreme Court has held:
"20. Order 33 CPC is an enabling provision which allows filing of a suit by an
indigent person without paying the court fee at the initial stage. If the plaintiff
ultimately succeeds in the suit, the court would 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 and that amount would be recoverable by the
1 (1992) 4 SCC 736
2

(2001) 5 SCC 22

State from any party ordered by the decree to pay the same. It is further
provided that when the suit is dismissed, then also the State would take steps
to recover the court fee payable by the plaintiff and this court fee shall be a
first charge on the subject- matter of the suit. So there is only a provision for
he deferred payment of the court fees and this benevolent provision is
intended to help the poor litigants who are unable to pay the requisite court fee
Civil Procedure Code-Project Report
to file a suit because of their poverty. Explanation I to Rule 1 Order 33 states
that an indigent person is one who is not possessed of sufficient amount (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. It is further provided that where no such fee is
prescribed, if such person 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 he would be an indigent person."
Recently, in Jeyabalan v. Virumandi
33
the Madurai Bench of the Madras High
Court observed:
13. It is relevant to point that possession of sufficient means does not mean
possession of sufficient property and it does not include such means on which
bare living of party and his family depends and it is only a capacity to raise
funds by normal and available lawful means that would be taken into
account."
Who Can File A Pauper Application?
It was held that pauper application can not only be filed by natural persons but
judicial person also lie within its ambit and scope
44
. It is well settled that the
provisions of Order 33, Rule 1 CODE OF CIVIL PROCEDURE, 1908 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, dies, it
cannot be said that afterwards his legal heirs can get benefit.

[2010] 3 MLJ 80

Supra Note 2

Meaning and Scope: Indigent Person

The concept of indigent person has been discussed in Corpus Juris Secundum
5

as following:
"' 93. What constitutes indigency: The right to sue in forma pauperis is
restricted to indigent persons. A person may proceed as poor person only after
a court is satisfied that he or she is unable to prosecute the suit and pay the
costs and expenses. A person is indigent if the payment of fees would deprive
one of basic living expenses, or if the person is in a state of impoverishment
that substantially and effectively impairs or prevents the pursuit of a court
remedy. However, a person need not be destitute. Factors considered when
determining if a litigant is indigent are similar to those considered in criminal
cases, and include the party's employment status and income, including
income from government sources such as Social Security and unemployment
benefits, the ownership of unencumbered assets, including real or personal
property and money on deposit, the party's total indebtedness, and any
financial assistance received from family or close friends. Not only personal
liquid assets, but also alternative sources of money should be considered."
Civil Procedure Code-Project Report
The eligibility of person to sue in forma pauperis has been considered in
American Jurisprudence6
as thus:
"100. Eligibility to sue in forma pauperis; generally: The burden of
establishing indigency is on the defendant claiming indigent status, who must
demonstrate not that he or she is entirely destitute and without funds, but that
payments for counsel would place an undue hardship on his or her ability to
provide the basic necessities of life for himself or herself and his or her
family. Factors particularly relevant to the determination of whether a party to
a civil proceeding is indigent are:
(1) the party's employment status and income, including income from
government sources such as social security and unemployment benefits;
(2) the ownership of any unencumbered assets, including real or personal
property and monies on deposit; and finally
(3) the party's total indebtedness and any financial assistance received from
family or close friends. Where two people are living together and functioning
as a single economic unit, whether married, related, or otherwise,
consideration of their combined financial assets may be warranted for the
purposes of determining a party's indigency status in a civil proceeding."
The concept was well explained by the Orissa high court in Manglu Chattar v.
Maheshwar Bhoi7
as follows, the tools of artisans are exempted from the
5

Corpus Juris Secundum 20 C.J.S. Costs ' 93

American Jurisprudence 20 Am. Jur. 2d Costs ' 100

attachment. In the instant case according to the findings of the trial court, the
appellant possessed of tools and weaving materials and they get daily wages.
Both these items are covered under the Section 60(1) of CODE OF CIVIL
PROCEDURE, 1908. 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.
The Supreme Court of India has settled the issue that, whether a public
company can file a suit as an indigent person or not. The Honble Supreme
Court 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 application under Order 33,
Rule 1, CODE OF CIVIL PROCEDURE,1908.
The word person mentioned in Order 33 includes not only a natural person
but other judicial person also8
.
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.
7

AIR 1981 Ori 153

Supra, Note 2

View taken by different High Courts

This issue was also there for consideration before the Madras High court in
Chandrareka v. Secretary of State of India9
, a division bench held that the
plaintiff in that particular suit who obtained a decree for Rs. 100 being a
moiety of the property claimed is liable to pay court fee with regard to the sum
of Rs. 100 and the first defendant who contested the suit is liable to pay court
fee for the balance amount under section 411 of CODE OF CIVIL
PROCEDURE, 1908 of 1881.
This question also came before the Allahabad High Court in Ganga Dahal v.
M.T. Gaura10
, a division bench of the Allahabad High court has held that
under Rule 10 of Order 33 of the CODE OF CIVIL PROCEDURE, 1908, the
legislature deals with the case of a pauper plaintiff who succeeds in the suit
and under Rule 11 with the case of a pauper plaintiff who fails in the suit.
There is no separate provision for a case like the present, in which a pauper
plaintiff has partly succeed and partly failed. Presumably the court is intended
to deal with such a case by combining the provision of the two Rules. It is
clear that, if plaintiff who is permitted to institute the suit as an indigent
person succeeded in the part in a suit, the court fee payable by him for the suit,
the court fee payable by him on the plaint or memorandum of appeal has to be
apportioned between the plaintiff and the defendant in the proportion to the
success of the each party. Therefore the liability of the plaintiff who sued as
indigent person or in the forma pauperis to pay the court fee if he succeeds
entirely in the suit and to pay the court fee in proportion to the success 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 33 of the present
code and under the analogous provisions for the previous code is well
established.
Procedure Where Indigent Person Fails
Rule 11 of Order 33 of CODE OF CIVIL PROCEDURE, 1908 deals with this
aspect of Suits by 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 of 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
9

(1891) ILR 14 Mad 163

10 AIR 1916 All 327

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.

Conclusion
To sum up, the indigent person, in terms of explanation I to Rule 1 of Order
33 of the Code of Civil Procedure, is one who is either not possessed of
sufficient means to pay court fee when such fee is prescribed by law, or is not
entitled to property worth one thousand rupees when such court fee is not
prescribed. In both the cases, the property exempted from the attachment in
execution of a decree and the subject-matter of the suit shall not be taken into
account to calculate financial worth or ability of such indigent person.
Moreover, the factors such as person's employment status and total income
including retirement benefits in the form of pension, ownership of realizable
unencumbered assets, and person's total indebtness and financial assistance
received from the family member or close friends can be taken into account in
order to determine whether a person is possessed of sufficient means or
indigent to pay requisite court fee. Therefore, the expression "sufficient
means" in Order 33 Rule 1 of the Code of Civil Procedure contemplates the
ability or capacity of a person in the ordinary course to raise money by
available lawful means to pay court fee