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. (Order XXXIII, Rule 1, Expln. III).
The benefit of Order XXXIII, C.RC. is conferred on persons without ‘sufficient means’ and not without any means at all. Pauperism is not a pre-requisite for the leave. What is contemplated is not possession of property but sufficient means. Capacity to raise money and not actual possession of property alone is what the court has to look into.
Possession of sufficient means refers to possession of sufficient realisable property which will enable the plaintiff to pay the court-fee. Possession of hard cash sufficient enough to pay the court-fee is not a pre-requisite to make one a person of sufficient means within the meaning of the rule. A person entitled to sufficient property may nevertheless be not possessed of sufficient means to pay court-fee.
Even one who is entitled to or possessed of property cannot be for that reason alone held to be having sufficient means. What is intended and provided is that justice shall not be denied to a person for the reason that he is not having sufficient means to pay court-fee.
What is intended is not capacity to raise funds by means whatsoever by begging, borrowing or stealing or by any other hook or crook, but by normal, and available lawful means. It is not an essentiality that one should deprive himself of the sole means of livelihood or alienate all his assets and seek justice in penury. This itself is the object of exclusion of property exempt from attachment in execution of a decree and the subject-matter of the suit from “sufficient means”.
Assessment or “sufficient means” should not be at the expense of right to live with dignity guaranteed under the Constitution. Capacity to raise funds could only cover all forms of realisable assets which a person could in the normal circumstances convert into cash and utilise for the litigation without detriment to his normal existence.
A debt that has yet to be realised or an asset which is not within the immediate reach of the plaintiff to be converted into cash for payment of court-fee cannot be taken into account in calculating sufficient means. The approach must be practical and in a way to promote the cause of justice and at the same time cautious enough to plug mala fide avoidance of immediate payment of court fee. The words used are ‘possessed of sufficient means’ which mean that what was not possessed at the time of suit cannot be taken into account.
Every inquiry into the question whether or not a person is an indigent person shall be made, in the first instance, 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 an inquiry into the question. (Order XXXIII, Rule 1A).
The word ‘means’ certainly covers all realisable assets within a person’s reach, but it is doubtful whether a right to enjoy a particular property for life, by which the person entitled to enjoy the same has to take out his livelihood from the income of such property can be considered means even if an offer is made to advance funds on such right.
It cannot be equated with the equity of redemption available to a mortgagor which certainly is an asset. The right to enjoy the property is not normally a saleable or encumberable interest though persons interested might offer to purchase or take a mortgage, not necessarily to help the vendor or mortgagor, but to place the allottee in embarrassing circumstances.
A person to be entitled to sue as an indigent person has to obtain permission to sue as such by the court. The application for permission must contain the particulars required in regard to plaints and a schedule of the property, movable and immovable, belonging to the applicant, with the estimated value thereof, and it should be signed and verified as if it were a plaint.
The application should be presented to the court by the applicant in person, unless he is exempted from appearing in court in which case the application may be presented by an authorised agent, who can answer all material questions relating to the application: provided that where there are more plaintiffs than one, it shall be sufficient if the application is presented by one of the plaintiffs. The applicant or his agent may then be examined by the court regarding the merits of the claim and the property of the applicant. (Order XXXIII, Rules 2-4).
Possession of a house, possession of some land and possibility of getting compensation do present a rosy picture. However, they become illusory when the compensation is yet to be received, when the petitioner has no other shelter to house his family, when the petitioner has five members to support including himself with wages of Rs. 410/- per month as an employee in a petrol pump.
The above considerations persuaded the court to reject the findings of the trial court and to permit the petitioner to sue as an indigent person. In the event of the petitioner receiving the compensation due to him in respect of one-third area of 4 acres 12 guntas of land acquired by the Government, there is always a residual liability to pay the court fee and the right to recover as far as the State is concerned. The petitioner was permitted to sue as an indigent person.
Possession of ‘sufficient means’ as indicated in cl. (a) of Explanation I of Rule 1 is not possession of property but of sufficient means and the court has to enquire into the capacity to raise money and not actual possession. The possession of ‘sufficient means’ refers to the possession of sufficient realisable property which will enable the plaintiff to pay the court-fee on the plaint.
The expression ‘possession of sufficient means’ refers to capacity to raise money and not the actual possession of property. Where the property of the party is hypothecated to a bank to secure principal and interest, and the party is not in a position to convert the property into cash, he cannot be held to be a person possessing sufficient means to pay the court-fee.
The word ‘means’ is intended to cover and include all forms of realisable assets which can be converted into cash, and as such can be used for financing the litigation. A debt which is due from a third person cannot be said to be ‘means’ of which the applicant is possessed, and the words ‘is not possessed of’ must mean that the applicant has no actual control over it.
‘Possessed of sufficient means’ mean actual control over a thing and capacity to reduce it into his possession without having recourse to law. Where the petitioner is possessed of some property which is not cash, the test to decide whether he is a pauper is not whether in the abstract he has the power of raising money, but whether in the concrete circumstances of the case he can succeed in raising anything substantial by exercising that power.
The application to sue as indigent person should not be rejected summarily merely on the ground that it has not been signed and verified by the applicant. Even if there is an omission in the application, the application may be returned for rectification. The rule is not to be meticulously interpreted against the applicant.
A substantial compliance with the rule is sufficient. Where the applicant does not verify the contents of the petition at the foot of the petition but does so by a separate affidavit in which the statements contained in the several paragraphs in the application were said to be true, the affidavit could be treated as a part of the application.
Rejection of application:
The court shall reject an application for permission to sue as an indigent person—
(a) Where it is not properly framed and presented in the manner prescribed by Rules 2 and 3, i.e., full particulars as detailed above are not given or where the application is not presented by the proper person; or
(b) Where the applicant is not an indigent person; or
(c) Where he has, within two months next before the presentation of the application, disposed of any property fraudulently or in order to be able to apply for permission to sue as an indigent person, provided that such an application shall not be rejected if after taking into account the value of the property disposed of by the applicant, the applicant would be entitled to sue as an indigent person; or
(d) Where his allegations do not show a cause of action; or
(e) Where he has entered into any agreement with reference to the subject-matter of the proposed suit under which any other person has obtained an interest in such subject-matter; or
(f) Where the allegations made by the applicant in the application show that the suit would be barred by any law for the time being in force; or
(g) Where any other person has entered into an agreement with him to finance the litigation. (Order XXXIII, Rule 5).
This rule is intended to be exhaustive.
An application to sue as an indigent person is a composite document consisting of an unstamped plaint and an application for permission to sue in forma pauperis. If the application for permission to sue in forma pauperis is rejected, the plaint still remains and the court may, in its discretion, allow the petitioner to pay the court fee and in such a case the suit shall be deemed to have been instituted on the date of presentation of the application. After rejection of the leave, the court should consider whether the petitioner plaintiff should be given time for payment of court fee and pass appropriate orders.
When the court sees no reason to reject the application on any of the grounds stated above, it shall fix a day after notice to the opposite party and the Government pleader for receiving such evidence as the applicant may adduce in proof of his pauperism, and for hearing any evidence which may be adduced in disproof thereof.
The court examines the witnesses produced by either party and the applicant or his agent makes a full record of their evidence and hears arguments and after such hearing may allow or refuse to allow the applicant to sue as an indigent person. Where the application is granted it is numbered and registered and deemed the plaint in the suit. The suit then proceeds in the ordinary manner except that the plaintiff is not liable to pay any court-fee, other than fee payable for service of process. (Order XXXIII, Rules 6-8).
The High Court was labouring under a mistake when it said that the enquiry into the question whether the respondent was an indigent person was exclusively a matter between him and the State Government and that the appellant was not interested in establishing that the respondent was not an indigent person.
Order XXXIII, Rule 6 provides that if the court does not reject the application under Rule 5, the court shall fix a day of which at least 10 days’ notice shall be given to the opposite party and the Government pleader for receiving such evidence as the applicant may adduce in proof of pauperism and for hearing any evidence in disproof thereof.
Under Order XXXIII, Rule 9, it is open to the court on the application of the defendant to dispauper the plaintiff on the grounds specified therein, one of them being that his means are such that he ought not to continue to sue as an indigent person.
Immunity from litigation unless the requisite court fee is paid by the plaintiff is a valuable right for the defendant. And does it not follow as a corollary that the proceedings to establish that the applicant-plaintiff is an indigent person, which will take away that immunity, is a proceeding in which the defendant is vitally interested?
To what purpose does Order XXXIII, Rule 6, confer the right on the opposite party to participate in the enquiry into the pauperism and adduce evidence to establish that the applicant is an indigent person unless the opposite party is interested in the question and entitled to avail himself of all the normal procedure to establish it.
Where a person, who is permitted to sue as an indigent person, is not represented by a pleader, the court may, if the circumstances of the case so require, assign a pleader to him. (Order XXXIII, Rule 9A).
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 a pauper, and 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. (Ord XXXIII, Rule 10).
A suit by an indigent person or a person claiming to be an indigent person must be regarded as instituted on the date of the presentation of application for permission to sue in forma pauperis as required by Rules 2 and 3 of Order XXXIII, C.P.C. When permission to sue as an indigent person is granted by the court under Order XXXIII, Rule 7, the petition or application must be regarded as a plaint filed on the day when the application was presented to the court.
Vijay Pratap Singh v. Dukh Haran Nath Singh:
An application to sue in forma pauperis is but a method prescribed by the Code for institution of a suit by an indigent person without payment of fee prescribed by the Court Fees Act. If the claim made by the applicant that he is an indigent person is not established the application may fail. But there is nothing personal in such application. The suit commences from the moment an application for permission to sue in forma pauperis as required by Order XXXIII of the Code of Civil Procedure is presented, and Order I, Rule 10 of the Code of Civil Procedure would be as much applicable in such a suit as in a suit in which court-fee had been duly paid.
There is nothing in Order XXXIII, C.P.C. which prevents an applicant from telling the court that although he had prayed for permission to sue in forma pauperis, he is now in possession of funds and would like to pay the court fee on the application treating it as a plaint.
Thereby, in effect, the applicant withdraws his prayer for permission to sue as an indigent person and requests the court not to apply the provisions of Order XXXIII to him If the court agrees, and, generally in practice the court does agree, to treat the application as a plaint, in view of the fact that it contains all the necessary particulars required in a plaint, there would be no objection to the suit being treated as one instituted by the presentation of a plaint.
By acceptance of the court-fee by the court, the document, namely, the plain would, by virtue of S. 149, C.P.C. have the same force and effect as if sue fee had been paid in the first instance, viz., on the date it was presented the Court.
Where the plaintiff fails in the suit or is dispaupered, or where the suit is withdrawn or dismissed for default on failure of the plaintiff to pay f postal charges chargeable for the service of the defendant, the court shall order the plaintiff, or any person added as a co-plaintiff to the suit, to pa the court-fees which could have been paid by the plaintiff if he had been permitted to sue as an indigent person. (Order XXXIII, Rule 11).
By refusing the application for forma pauperis, the proceedings are no terminated by the trial court. If the plaintiff fails to pay the court fees within the time fixed, the trial court has to make an order for rejection the plaint. The trial court cannot also pass an order for rejection of the plaint if an appeal against the order of the trial court refusing the application for forma pauperis is pending in the High Court.
It w accordingly directed by Hon. M.L. Bhat, J. of the Allahabad High Court that proceedings in the trial court shall continue until the decision of the appeal in the High Court regarding pauperism. The trial of the suit in the trial court shall be subject to any order which may be passed in the appeal by the High Court. The disposal of the suit shall, however, depend on the decision of the appeal.
Remedies in case of refusal of leave to file suit in forma pauperis:
When in an application made to file a suit in forma pauperis leave is refused to allow the suit to be filed in forma pauperis and when subsequently the court-fee is not paid within the time given for payment and the application made to file the suit in forma pauperis is finally rejected or dismissed, the final orders passed would amount to rejection of the plaint and the remedy of the applicant against such an order is not by way of revision but by way of appeal, such an order being a ‘decree’ within the meaning of S. 2 (2) of the Code of Civil Procedure.
The earlier order passed refusing permission to sue in forma pauperis merges in such a decree and after passing of the final order rejecting or dismissing an indigent person’s application for pauperism the remedy for questioning the correctness of the order of the court refusing permission to file the suit in forma pauperis is only to prefer an appeal against the final order passed rejecting or dismissing the application and not to file a revision against the earlier order passed refusing permission to file the suit in forma pauperis, though such a revision lies before the application is finally rejected or dismissed.
Suit by indigent person:
A Public Limited Company, which is entitled to maintain a suit as a legal person, can maintain an application under Order XXXIII, Rule 1 of the Code.
The court may, on the application of the defendant or of the Government pleader, of which seven days’ clear notice in writing has been given to the plaintiff, order the plaintiff to be dispaupered
(1) If he is guilty of vexatious or improper conduct in the course of the suit;
(2) If it appears that his means are such that he ought not to continue to sue as an indigent person; or
(3) If he has entered into any agreement, with reference to the subject-matter of the suit under which any other person has obtained an interest in such subject-matter. (Order XXXIII, Rule 9).
Such an order shall bar a fresh application of a like nature by him in respect of the same right to sue; but the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such right, provided that he first pays costs (if any) incurred by the State Government and by the opposite party in opposing the application for leave to sue as an indigent person.
The right to sue in forma pauperis being a personal one the application to sue as an indigent person abates on the death of the applicant and his legal representatives cannot be brought on the record and the application continued.
On such abatement the court shall order 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 to be recoverable by the State Government from the estate of the deceased plaintiff. The remedy of the legal representative, therefore, is to file a fresh application to sue in forma pauperis, or to institute a suit on paying court-fees.
The privileges of maintaining a suit in forma pauperis is a person’ privilege granted to a plaintiff who has no means of carrying on or continuing the litigation. If the plaintiff who is an indigent person dies pending the suit, his legal representative is not entitled to continue the suit in forma pauperis unless he himself is an indigent person and has obtained leave to continue in that capacity.
The right to sue in forma pauperis is a personal right and on the death of the original plaintiff his legal representative cannot prosecute the suit unless he either pays the court fee or proves that he himself is a pauper. An application for leave to sue in forma pauperis is a composite document consisting of an unstamped plaint and an application for permission to sue as an indigent person.
If the application is rejected, the plaint still remains and the court may, in its discretion, while rejecting the application, allow the applicant to pay the requisite court-fee on the plain and in that case the plaint shall be deemed to have been instituted on the date of presentation of the original application.
Rejection of application:
As provided under Order XXXIII, Rule 15 an order refusing to allow an application to sue as an indigent person could be a bar only to any subsequent application of the like nature by him in respect of the same right to sue, but the applicant would be at liberty to institute a suit in the ordinary manner in respect of such right, provided that the plaint shall be rejected if he does not pay, either at the time: institution of the suit or within such time thereafter as the court may allow the costs, if any incurred by the State Government and by the opposite pa 1 in opposing his application for leave to sue as an indigent person.
Therefore the idea is that even if the applicant fails ultimately in his application filed to sue as an indigent person by the dismissal of the application, he is not prevented from instituting a suit in the ordinary manner in respect of the same right. This he cannot if the dismissal of his application to sue as an indigent person finally does not amount merely to rejection of the plaint but amounts to only dismissal of the suit for default because there is an essential distinction between rejection of a plaint and dismissal of a suit.
The rejection of a plaint takes away the basis of the suit. It amounts to that no suit was filed. But in the case of a dismissal even for default the existence of the suit is recognised and its termination is indicated, in which case the applicant is no longer within his right to institute a suit even in the ordinary manner in respect of the same right.
Therefore, when any application for pauperism is finally disposed of after refusing leave to t applicant to sue in forma pauperis, it amounts to rejection of the plaint and not dismissal of the suit for default.
Grant of time for payment of court-fee:
Nothing contained in Rule 5, Rule 7 or Rule 15 shall prevent a court, while rejecting an application under Rule 5 or refusing an application under Rule 7, from granting time to the applicant to pay the requisite court-fee within such time as may be fixed by the court or extended by it from time to time; and upon such payment and on payment of the costs referred to in Rule 15 within that time, the suit shall be deemed to have been instituted on the date on which the application for permission to sue as an indigent person was presented. (Order XXXIII, Rule 15A).
The costs of an application for permission to sue as an indigent person and of an inquiry into pauperism shall be costs in the suit. (Order XXXIII, Rule 16).
Any defendant, who desires to plead a set-off or counter-claim, may be allowed to set up such claim as an indigent person and the rules contained in Order XXXIII shall, so far as may be, apply to him as if he were a plaintiff and his written statement were a plaint. (Order XXXIII, Rule 17).