CODE OF CIVIL PROCEDURE 1908

ASSIGNMENT ON

SUITS BY PAUPERS
OR

INDIGENT PERSON

Submitted by-

Sunilkumar. K. S

Roll no. 92,

Law Academy Law College,

Thiruvananthapuram.
 TABLE OF CONTENTS

TABLE OF CONTENTS ............................................................................................................................... 2

CASE LAWS ……………………………………………………………………………………………………..3

INTRODUCTION .......................................................................................................................................... 4

ORDER 33: SUITS BY INDIGENT PERSON .............................................................................................. 8

I. SCOPE AND OBJECT .............................................................................................................................. 8

II. APPLICATION AND PROCEDURE FOLLOWED BY AN INDIGENT PERSON ..................................................... 9
III. OTHER PROVISIONS ........................................................................................................................... 13

ORDER44: APPEALS BY INDINGENT PERSON .................................................................................... 15

CONCLUSION............................................................................................................................................. 18

BIBLIOGRAPHY ........................................................................................................................................ 19

Page 2
CASE LAWS
1. A.A.Haja Muniuddin v. Indian Railways, (1992) 4 SCC 736
2. Sushil Thomas Abraham v. Skyline Builders, (2019) 3 SCC 415
3. Mathai M. Paikeday v. C.K. Antony, (2011) 13 SCC 174

4. Union Bank of India v. Khader International Construction, (2001) 5 SCC 22.

5. Chayamani Tripathy and another v Dharmananda Panda
6. Mathai M. Paikeday v C.K. Anthony, CIVIL APPEAL NO. 5493 OF 2011.
7. State of Haryana v Darshana Debi
8. A. A. Haja Muniuddin v. Indian Railways, (1992) 4 SCC 736.
9. B.Manikyam v B Ramamurthy AIR 1975 Ori 20.
10. Union Bank of India v Khader Intl. Construction, Appeal (civil) 943 of 1993
11. RL Nathan v PK Ojha AIR 1976 Pat 127.
12. Ramdas Sahu v Ramchandra AIR 1957 Pat 562.
13. Powsulph (India) Pvt. Ltd. v Inventa Technical and Ors., AIR 1995 Ori 291.

14. Sibasankar Tiadi vs Koli Tihadhiani And Ors, AIR 1964 Ori 106.
15. Kamu v M Manikandan (1998) 8 SCC 522.
16. Vijai Pratap v Dukh Haran Nath AIR 1962 SC 941.
17. Sukadeolal Banka and Anr. v Jogeswar Prasad Sharma and Anr. AIR 1986 Ori 144.
18. Abdul Wakil Khan v Bibi Talimunnissa, AIR 1950 Pat 517.
19. Radhika Prasad v Shyama Charan, AIR 1966 Pat 387.
20. Province of Orissa v Dibyasingh Nand AIR 1941 Pat 594
21. Gupteshwar v Chaturanand AIR 1950 Pat 309
22. Union Bank of India v. Khader International Construction, (2001) 5 SCC 22.
23. RL Nathan v PK Ojha AIR 1976 Pat 127.
24. Ramdas Sahu v Ramchandra AIR 1957 Pat 562.
25. Powsulph (India) Pvt. Ltd. v Inventa Technical and Ors., AIR 1995 Ori 291.
26. Sibasankar Tiadi vs Koli Tihadhiani And Ors, AIR 1964 Ori 106.
27. Kamu v M Manikandan (1998) 8 SCC 522.
28. Vijai Pratap v Dukh Haran Nath AIR 1962 SC 941.
29. Sukadeolal Banka and Anr. v Jogeswar Prasad Sharma and Anr. AIR 1986 Ori 144.
30. Abdul Wakil Khan v Bibi Talimunnissa, AIR 1950 Pat 517.
31. Radhika Prasad v Shyama Charan, AIR 1966 Pat 387.
32. Province of Orissa v Dibyasingh Nand AIR 1941 Pat 594.
33. Gupteshwar v Chaturanand AIR 1950 Pat 309
34. Ananga Bhusan v. Ghanashyam AIR 1951 Ori 349
35. Jeypore Evangical LutheranChrch v Samuel Santhi Kumar Chaudhry AIR 1985 Ori 195
36. Babui v Secy of State (1919) 4 Pat LJ 166
37. Babui v Secy of State 50 IC 315
38. Province of Orissa v Rangamma AIR 1950 Ori 220
39. Ram Sarup v. Union of India AIR 1983 SC 1196

Page 3
 INTRODUCTION

India being a welfare State provides the necessary Legal Aid and assistance to the
poor and the downtrodden. Order XXXIII of the Code of Civil Procedure, 1908, is one
such example of Legal Aid rendered to the Indigent Persons which inter-alia provides
for the institution of Civil Suits by Indigent Persons. Initially, the expression “Pauper”
was being used but later it was replaced with the expression “Indigent Person”.

At the time of institution of a Civil Suit, the Plaintiff(s) i.e. the person(s) instituting the
Civil Suit, is/ are required to pay the requisite Court Fees as prescribed under the
Court Fees Act, 1870. However, the poor people do not possess sufficient means to
pay the Court Fees. Therefore, Order XXXIII comes to their rescue, by exempting
them from the payment of the Court Fees at the first instance and allows them to
prosecute the suit in forma pauperis subject to certain conditions as stipulated under
the Order.

In the matter of A.A.Haja Muniuddin v. Indian Railways, (1992) 4 SCC 736, the
Hon’ble Supreme Court observed that:

"5. ... Access to justice cannot be denied to an individual merely because he

does not have the means to pay the prescribed fee."

Definition

The definition of an Indigent Person is provided in the Explanation I to Rule 1 of

the Order XXXIII, which states that 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 to Rule 1 provides that 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.

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The expression “not possessed of sufficient means” mentioned in the Explanation
I to Order XXXIII Rule 1, while defining with the word, ‘indigent person’, refers to
person’s capacity to pay the Court Fee prescribed by law for the Plaint in such a suit.
What is contemplated is not possession of the property but sufficient means with
capacity to raise money to pay the Court Fee.

The Hon’ble Supreme Court in the case of, Sushil Thomas Abraham v. Skyline
Builders, (2019) 3 SCC 415 observed as under:

“19. The question as to whether the plaintiff is possessed of sufficient means to pay
the requisite Court fees for the plaint in the suit as per the provisions of the Court
Fees Act, 1870 is required to be decided by holding an inquiry as prescribed under
Rules 4 to 7 of Order 33 of the Code by the trial Court.

20. While examining this question, the Court cannot take into consideration the two
properties. First, the property, which is exempted from the attachment in execution of
a decree and the second, which is subject-matter of the suit. In other words, the
aforementioned two properties cannot be regarded as “possessed” by the person
concerned for determining his financial capacity to pay the requisite Court fees on
his claim in the suit.”

The Hon’ble Supreme Court in the case of Mathai M. Paikeday v. C.K. Antony,
(2011) 13 SCC 174 at page 179 opined that:

“19. Moreover, the factors such as person's employment status and total income
including retirement benefits in the form of pension, ownership of realisable
unencumbered assets, and person's total indebtedness and financial assistance
received from the family members 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.”

Moving further into this Article, it is necessary to understand as to how such

applications to sue as an indigent person are dealt with and the procedure
prescribed under Order XXXIII.

An indigent person may apply to the Court for exemption from payment of Court
Fees in the first instance. However, while moving such applications before the Court,
one should keep in mind that the application:

1. contains the particulars required in regard to plaints in suits;

2. contains a schedule of the movable and immovable property belonging to the
applicant, with the estimated value thereof; and

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 3. is signed and verified in the manner prescribed for the signature and
verifications of Pleadings under Order VI Rule 14 & 15 respectively.

Once the application meets the above criteria, it is duly presented to the Court, either
by the applicant in person or by his authorized agent, in case the applicant has been
exempted from appearance by the Court. After receipt of the Application, the Court
may examine the Applicant in person or his Agent, as the case may be, regarding
the merits of the claim and the property of the Applicant.

The Court will prima facie reject such applications in the following cases:

1. where it is not framed and presented in the prescribed manner; or

2. where the applicant is not an indigent person; or
3. where the applicant has, within two months next before the presentation of the
application, has disposed of any property fraudulently or in order to be able to
apply for permission to sue as an indigent person; or
4. where there is no cause of action; or
5. where the applicant has entered into an agreement with reference to the
subject- matter of the suit under which another person has obtained interest;
or
6. where the allegations show that the suit would be barred by any law; or
7. where any other person has entered into an agreement within him to finance
the litigation.

It is noteworthy that where the Court rejects an application to sue as an indigent

person, it will grant time to the Applicant to pay the Court fees. An order refusing to
allow an applicant to sue as an indigent person shall be a bar to a subsequent
similar application. However, this does not debar him from suing in an ordinary
manner, provided he pays the costs incurred by the Government pleader and the
opposite party in opposing the application.

If there is no reason to reject the application, then the Court may issue notice to the
other party and the Government Pleader for not less than 10 days, for receiving such
evidence as the application may adduce in proof of his indigency, and for hearing
any evidence which may be adduced in disproof thereof. The Court shall conduct
every inquiry into the question about the indigence of such applicant, by the Chief
Ministerial Officer of the Court, unless the Court otherwise directs, and the Court
may adopt the report of such Officer as its own finding or may itself make inquiry into
the question. On the day fixed for hearing, after receiving evidence and examination
of witness, the Court will hear the arguments. The Court shall then either allow or
refuse to allow the applicant to sue as an indigent person.

Basically, an indigent person is a person who either does not have sufficient means
to pay the court fees when she/he is required to pay or is not entitled to property
worth one thousand rupees when the court fees is not prescribed. In both of these

Page 6
case, the property exempted from the attachment in execution of a decree and the
subject matter of the suit is not be taken into account to ascertain the financial
position of the indigent person.1 Factors such as the employment status of the
person and total income including retirement benefits such as pension, ownership of
assets which are yet to be realized, the indebtness and any type assistance received
from the family members or close friends, financially, can be taken into consideration
to decide whether the person has sufficient means or not, so that she/he can file suit
as an indigent person or not. In the case of Chayamani Tripathy and another v
Dharmananda Panda2, it has been held that “term ‘not possessed of sufficient
means’ to enable him to pay the fee prescribed is the requirement for
permission to sue as indigent person.”

The concept of indigency has also been discussed in Corpus Juris Secundum (20
C.J.S. Costs 93):

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.”3

1
Union Bank of India v. Khader International Construction, (2001) 5 SCC 22.
2
AIR 1993 Ori 23
3
Mathai M. Paikeday v C.K. Anthony, CIVIL APPEAL NO. 5493 OF 2011.

Page 7
 ORDER 33: SUITS BY INDIGENT PERSON

I. SCOPE AND OBJECT

Mere reading of the provisions specified in the order gives us an idea that the basic
objective of order 33 is to enable the persons with weak financial position, to avail
justice by way of filing suits or appeals, without the burden of paying court fees. It is
unfortunate indeed that in our democratic system, justice is still a dream for a large
part of the population. There is difference between enacting a law and enforcing the
law. Generally, in India, justice becomes available only to such persons who have
sufficient money. The money is needed not only to pay hefty court-fees but also for
the payment of getting legal assistance and meeting other sundry expenditures. The
provisions providing the advantage to file a case without having sufficient means has
been on the statue book for many years but it has only acted as eyewash.

In State of Haryana v Darshana Debi4, it has been held by the Supreme Court that
the provisions of Order 33 apply to tribunals like the Motor Accident Claims Tribunals
which have all the trappings of a civil court. The court must give the benefit of doubt
of imposing the price to enter the court until the Supreme Court reviews the whole
issue of levy of court fees. Whenever, an indigent personawould approach the
tribunal with the claim for the compensation for the wrong done to him,
theatribunalacannot refuse to exercise jurisdiction merely because he does not have
means to pay the fee.5 Before the establishments of the claim tribunal a person
would have been able to file the suit invoking order 33 of CPC as an indigent person.
Now that a Special Claims Tribunal has been established under the act, it can be
said that an indigent person who do not have any means to pay the required fees are
altogether debarred from seeking compensation for the wrong done to them. Access
to justice cannot be denied to an individual merely because she/he does not have
the means to pay the prescribed fees. Such a view would leave indigent person

4
AIR 1979 Sc 855
5
A. A. Haja Muniuddin v. Indian Railways, (1992) 4 SCC 736.

Page 8
without a remedy. 6

A plaintiff suing in a civil court must pay the court fees prescribed by the law for the
plaint and subsequent proceedings in the suit. These fees are prescribed by the
Court-Fees Act (7 of 1870). But a person may be too poor to pay the court-fee, and
the object of this order is to enable such a person to bring and prosecute suits
without payment of court fees. The object and purpose of Order 33 of the Code of
Civil Procedure are to enable a person, who is ridden by poverty, or not possessed
of sufficient means to pay court fee, to seek justice. Order 33 of the Code of Civil
Procedure exempts such indigent person from paying requisite court fee at the first
instance and allows him to institute suit or prosecute appeal in forma pauperis.7

II. APPLICATION AND PROCEDURE FOLLOWED BY AN INDIGENT PERSON

Before a person can file a suit as an indigent person, she /he should present an
application before the court, acceptance of which is necessary for the person to have
the privileges which she/he would be entitled to as an indigent person. It is not
important for the application to be presented to the court itself, presentation to proper
office of the court is also sufficient. The court has to satisfy itself that the application
is filed by a person who does not have sufficient means or who is a pauper. If the
person claiming to be an indigent person, presenting an application for the same, is
exempted from the court, the application can be filed by an authorized agent. An
advocate is an authorized agent within the meaning of this rule.8

After the presentation of the application, the court may examine the applicant
regarding the merits of the claim and whether the applicant comes under the ambit of
pauperism or not. The court may examine other persons, other than applicant but
only to ascertain the factor of pauperism and not regarding the claim. “Under Order
XXXIII, the Petitioner who files an application has to present the application in
person. Rule 3 stales that the person who is presenting the application shall be in a
position to answer all material questions relating to the application and he may also

6
id.
7
Supra note 5.
8
B.Manikyam v B Ramamurthy AIR 1975 Ori 20.

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be examined by the court.”9

After the examination, the court may or may not reject the application. Rule 5 10 of the
order provides for the grounds for rejecting the application. It has been a debatable
topic whether the grounds mention under rule 5 are exhaustive are not. Many of the
high courts have conflicting views regarding the exhaustiveness of the grounds
mentioned.

1) The first ground is if the application is not in compliance with rule 2 and 3,
then the application is deemed to be rejected. Utmost good faith is
required of the petitioner in the matter of disclosure of his assets and an
intentional departure from this rule must result in the dismissal in the
application.11 But if the omission is not intentional, is done in good faith, then
the application will not be dismissed. If the inclusion or omission of the
property doesn’t affect the position of the person as an indigent person, then
the inclusion will be treated as one done in good faith. The proper procedure
to be followed is to return the petition for amendment and then enquire
whether the inclusion would affect the position of petition as pauper. 12 Failure
to calculate the court-fee value also leads to rejection of the application, it
being not with accordance to rule 2 and 3 of order. If there is no attachment of
the schedule of the movable and immovable property and its estimated value,
belonging to the applicant, to the application, and the collector showed in its
report that the person has sufficient movable property, then it would be
against what is provided in rule 2, and hence the application will be rejected in
such a case too.13
2) The second ground is when the applicant is not an indigent person. If the
court ius not satisfied that the person filing the application is not an indigent
person, then under rule 5, the court can reject the application. In the case of

9
Union Bank of India v Khader Intl. Construction, Appeal (civil) 943 of 1993.
10
Order 33, Civil Procedure Code.
11
RL Nathan v PK Ojha AIR 1976 Pat 127.
12
Ramdas Sahu v Ramchandra AIR 1957 Pat 562.
13
Powsulph (India) Pvt. Ltd. v Inventa Technical and Ors., AIR 1995 Ori 291.

Page 10
 Abdul Khalique v Yasmin Sultan14, a petition was filed by a woman, for the
dissolution of the marriage, recovery of dower debt and recovery of gold and
silver ornaments. The petition was file under order 33, rule 1 to sue as an
indigent person. The court held that the wife can file the suit as an indigent
person as she did not had sufficient means, because she was made to leave
her matrimonial house without her gold and silver ornaments, in a state of
advanced pregnancy.
3) The third ground is when there is fraudulent disposal of property. It means
that if the applicant, two months before filing the application, has disposed off
her/his property to make herself/himself eligible to sue as an indigent person,
then the application of such a person will be rejected under this rule. 15
4) The fourth ground is when there is no cause of action. The court has to
ascertain whether the application shows a good subsisting cause of action
capable of enforcement in court and calling for an answer, and not barred by
the law of limitation or any other law. 16 In the case of Kamu alias Kamala
Ammal v M. Manikandan and Anr.17, it has been held that “It is, therefore,
obvious that the application for permission to sue as an indigent person has to
be rejected and could not be allowed if the allegations in the plaint do not
show a cause of action”. The question as to the extent and scope of an inquiry
as regards the existence of a cause of action under clause (d) came up for
consideration before the Supreme Court, and the law was thus stated 18:
“But in ascertaining whether the petition shows a cause of action, the Court
does not enter upon a trial of issues affecting the merits of the claim made by
the petitioner. It cannot take into consideration the defences which the
defendant may arise on the merits, nor is the court competent to make an
elaborate inquiry into doubtful or complicated questions of law or fact. If the
allegations in the petition, prima facie, show a cause of action, the court
cannot embark upon an enquiry whether the allegations are true in fact, or
whether the petitioner will succeed in the claims made by him. By the statute,
the jurisdiction of the court is restricted to ascertaining whether on the
14
AIR1986 Ori 189.
15
Sibasankar Tiadi vs Koli Tihadhiani And Ors, AIR 1964 Ori 106.
16
Kamu v M Manikandan (1998) 8 SCC 522.
17
(1998) 8 SCC 522.
18
Vijai Pratap v Dukh Haran Nath AIR 1962 SC 941.

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 allegations a cause of action is shown; the jurisdiction does not extend to trial
of issues which must fairly be left for decision at the hearing of the suit.”
5) The fifth ground is where there is transfer of interest in subject matter of
proposed suit. It means where the applicant has entered into any agreement
relating to the subject matter of the concerned suit under which any other
person has obtained interest in such subject matter.
6) The sixth ground is where there is bar of any law for the time being in
force. It means that when there is an allegation in the application which
shows that the suit would be barred by the law for the time being in force, then
19
the application will be rejected. to decide whether the application should be
rejected or not, the court has to look at the allegations present in the
application, it was held in the case of Western India Plywood Ltd v
Pashokan20, that where the suit is barred under section 53 of the Employees
State Insurance Act, 1948, the application under order 33, rule 1 is also not
maintainable.
7) The last ground is when there is an agreement to finance the litigation. If
the whole process of litigation is financed by a third person, it would act as a
reason for rejecting the application. When the application as been carefully
scrutinized by the court and every ground for rejecting it has been negated,
the court shall fix a day on which it would direct the applicant to present the
evidences which may prove that the applicant is an indigent person. Atleast
ten days notice should be given to the opposite party and the government
pleader regarding the same. Evidence should be confined only to the
question of pauperism and not extend to the merits of the case. 21 The notice
is also a mandatory provision which should be carried out by the court. If a
notice of ten clear days is not given, the defect is fatal and any finding
recorded by the court is illegal and must be set aside.22

Rule 7 says about allowing or refusing the applicant to file the suit as an indigent
person after considering the evidences produced by the applicant or of the opposite
party. This stage is reached only after the court has issued the notices under rule 6

19
Sukadeolal Banka and Anr. v Jogeswar Prasad Sharma and Anr. AIR 1986 Ori 144.
20
(1997) 7 SCC 638.
21
Abdul Wakil Khan v Bibi Talimunnissa, AIR 1950 Pat 517.
22
Radhika Prasad v Shyama Charan, AIR 1966 Pat 387.

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and served on them. 23

Provisions of rule 8 relate only to proceedings in the original court and do not apply
to applications for revision in the high court. Where pursuant to a preliminary decree,
accounts were taken of the amounts due to the plaintiff for mesne profits, and on that
a finding was recorded by the court and this was followed by an order directing the
payment of court- fees, on the amount found due, it was held that such an order
could not be made as the suit must be deemed to be pending until a final decree was
passed. There is a conflict in the judicial opinion as to whether a court can authorise
to make a suit before granting leave on the basis of indigent nature. The Patna High
Court has held that a decision on the question of jurisdiction can be given in Order 7
rule 10, only in a suit and that there is no suit until leave is granted. 24

Rule 9 provides for contingency where the plaintiff though originally permitted to sue
as an indigent person ceases to be an indigent person subsequent to the institution
of the suit. If the plaintiff ceases to be an indigent person then he shall be ordered to
pay the court fee which he would have done if he would have had to if a non indigent
person. It is a matter of discretion by the court if they would like to dispauper the
25
plaintiff. Application under this rule should be disposed of before the suit is
decided. It is not sound practise to dispauper the plaintiff while the suit is going on.
Where leave to sue was ggiven after notice to the defendant, who did not appear, an
application by him under this rule to dispauper the plaintiff on the ground that he was
possessed of sufficient means on the date of application is not maintainable. The
matter of pauperism is co-related with payment of court fees. The state government
26
is principally concerned with the payment of court fees.

III. OTHER PROVISIONS

Rule 10 applies only when suit has been permitted to be instituted in forma pauperis.
The charge is to be enforced by an application for the attachment and sale of the
subject-matter of the suit. A separate suit for the sale of the subject-matter to realise

23
Province of Orissa v Dibyasingh Nand AIR 1941 Pat 594.
24
Gupteshwar v Chaturanand AIR 1950 Pat 309
25
Ananga Bhusan v. Ghanashyam AIR 1951 Ori 349
26
Jeypore Evangical LutheranChrch v Samuel Santhi Kumar Chaudhry AIR 1985 Ori 195

Page 13
 27
the court-fees is now barred. The right to realise the court fee is not merely
because the property for the recovery of which the pauper suit was brought has
passed from the hands of the judgement –debtor into the hands of the pauper
decree-holder.28

If the plaintiff is directed to pay the court-fees, the government may realise the same
by an application for execution against the person or property of the plaintiff and if
the defendant is directed to pay the court – fees, the government may realise the
same by an application for execution against the person or property of the
defendant. Hence if the amount of the court-fees is not paid, the government is not
entitled to sell the decree obtained by the plaintiff for the purpose of recovering.
Receiver can be appointed to realise court-fees even out of future maintenance
subject to the safeguards as to payment of a sufficient sum for maintenance of the
29
party liable to bay the court fee. if the plaintiff succeeds in the suit and the amount
payable under the decree by the defendant is paid into court , the government is
entitled to payment of the court-fees out of the fund in the court on a mere
application for payment without attaching the fund for the first time. There is no
separate provision for the case in which a pauper plaintiff has partly succeeded and
partly failed. The plaintiff is bound to pay the court fee for the disallowed part of the
claim and it is not open to the court to direct the defendant to pay court fee
exceeding the amount payable on that portion of the plaintiff’s claim which is
allowed. However, when the court fees payable would consume the maintenance
amount for three years the state government will recommend waiver.

An order under this rule directing the pauper plaintiff to pay the court –fees can only
be made in te following cases-

 Where the plaintiff fails in the suit.

 Where the plaintiff is dispauperedunder rule 9
 Where the suit is withdrawn
 Where the suit is dismissed under the circumstances specified in cl (a) or cl
(b)

27
Babui v Secy of State (1919) 4 Pat LJ 166
28
Babui v Secy of State 50 IC 315
29
Province of Orissa v Rangamma AIR 1950 Ori 220

Page 14
It follows from what has been stated above that where an application for leave to sue
in forma pauperis is returned under order 7 , rule 10 for want of jurispiction to be
presented to the proper court , no order can be made under this rule directing the
applicant to pay the court fees.dimissal of the suit at the request of the plaintiff and
the defendant , on the suit being sttledout of court , amounts to failure within the
meaning of this rule. Where a plaint filed with insufficient court-fees was registered
as a suit and subsequently an order was made for payment of deficient court-fees
and the plaintiff then withdrew the suit , it was held that no order could be made for
payment of court –fees under this rule. The court has full power under sec 35 to give
and apportion costs in any manner as it thinks fit.

Rule 12 enables the government , in cases of error and omission with regard to court
fees , to have the error or omission rectified by a mere application to the court. Rule
12 can be invoked only when the court had omitted to make an order under rule 10
and 11.

Under rule 14 it is showed that order operates as a decree in favour of the collector
and the civil court under this rule informs the collector of the order . but the collection
of revenue is no part of the rule informs te collector of the order . but the collection of
revenue is no part of the business of the court and the copy of the order should not
be sent to the collector for necessary actions.

Rule 15 does not apply unless consequent on the dismissal of the applicant to sue in
forma pauperis , a court has passed an order specifying the amount of costs to be
paid by the unsuccessful applicant to government and the opposite party. The
condition under this rule as to payment of costs is required to be fulfilled only when a
suit in the ordinary manner is instituted after rejection of application to sue as a
pauper.

ORDER44: APPEALS BY INDINGENT PERSON

Under rule 1 of Order 44 the question that comes up is whether the applicant is an
indigent person or not. No question on the merit of the case does not arise here at
this stage . A rejection of the applicant under rule 1 can only means that the court is
not satisfied about the claim of the applicant that he is an indigent person. It does not

Page 15
 30
amount to a finding that the appeal is not fit for admission on merits.

The Calcutta High court has held that the word person does not imply company. The
Orissa High Court however held that the meaning of the expression ‘Person’ is to be
given a liberal meaning. As a juristic person the company is entitled for exemption
from court fees. 31

In a case the petitioner had obtained a decree for maintenance and sought to appeal
in forma pauperis for higher maintenance , but the defendanr paid Rs 571 as arrears
of maintenance into court to her credit , and the petition was dismissed on the
ground that she had sufficient means to pay the court – fee on the memorandum of
appeal. But in later case , in which the appeal arose out of a partition suit , the same
high court held that the subject – matter of the suit , that is , the property covered by
the decree which was passed in the appellant’s favour should be excluded. In a suit
to enforce a simple mortgage the equity of redemption , is not the subject –matter of
the suit and so the defendant appealing from the decree is bound to state its value in
the application for leave in forma pauperis. Wherethe appellante court directs an
inquiry as to pauperism by the lower court , it does not divest itself of its jurisdiction.
It is not bund to accept the subordinate court’s finding and decides independently
whether a leave is to be granted or not.

The present rule provides that the provisions relating to suits by paupers shall apply ,
so far as may be , to appeal by paupers. Therefore , the application referred to in this
rule for leave to appeal as a pauper must be presented by the applicant in person
just as an application for leave to sue as a pauper. This is now made clear by the
addition of the words ‘in all matters including the presentation of a pauper’s petition
did not apply to pauper appeals.

Sice provisions relating in Order 33 along Order 44bwill also apply to appeal under cl
15 in letter patent. Thus , where the schedule of movable and immovable properties
belonging to the applicant with estimated value therof is not annexed to application
or memorandum of appeal , it was held that the requirement of order 33 rule 12 has
not been complied with.

30
Ram Sarup v. Union of India AIR 1983 SC 1196
31
(1999) 1 Cal LT 502

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Two separate documents are required for rule 1- memorandum of Appeal and an
application for leave to appel as a pauper. A judgement and a decree sought to be
applealed has to accompany them. When the pauper’s application is disposed , he
doesnot thereby necessarily dispose of the appeal. He may still treat it as an
existing appeal if the appeallant desires to pay the full court – fees on the appealant
continue it as an ordinary appeal. If the appellant is granted leave by the judge as a
pauper then the judge is under no obligation to dismiss the case. Where an
application forleave to sue as a pauper is rejected owing to the memorandum of
appeal which accompanied it being unstamped , the rejection of the application does
not carry with it the rejection of the memorandum of the appel. The rejection of the
application for leave to file the appeal in forma pauperis does not involve the
rejection of the memorandum of appeal , andwhere the court grants , at the time it
refuses leave, time for payment of court fee , and that is paid within the time given ,
the appeal must be taken to have been presented ,for purposes of limitation , at the
time of its original presentation.

No appeals lies under the Code of Civil Procedure from an order refusing leave to
appeal as a pauper.

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 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. Thus, Order XXXIII enables the poor, needy and downtrodden, who fulfill
the criteria of an indigent person as prescribed under Order XXXIII, to seek justice by
granting exemption from payment of requisite Court fees at the first instance. Order
XXXIII allows such indigent persons to institute suit forma pauperis. It is regardless
to mention that the intention of the Legislature must be duly considered while
adjudicating such applications. The persons with sufficient means should not be
allowed to sue as indigent persons whereas the persons in real need and without
sufficient means be given the necessary assistance. The denial to access to Justice
is also an Injustice.

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 BIBLIOGRAPHY

Books:

1) Mulla, The Code of Civil Procedure, Volume 4

2) C.K.Takwani, Civil Procedure with Limitation Act, 1963.

Websites:

1) http://www.legalservicesindia.com/article/article/suits-by-indigent-person-
1279-1.html
2) http://www.legalblog.in/2011/07/indigent-person-under-code-of-civil.html
3) https://www.latestlaws.com/articles/all-about-suits-by-indigent-persons-under-
code-of-civil-procedure/
4) https://www.academia.edu/29278279/Cpc

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