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Published : September 14, 2012 | Author : sid201291
Category : Civil Laws | Total Views : 16407 | Rating :

  
sid201291
Siddharth Godha 581, haldiyon ka rasta,johari bazar, jaipur, rajasthan M/O: 9662136686
 

Order XXXIII relates to be filled by the 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.

Who Can File A Pauper Application?
It was held that pauper application should be filled by only natural person and into its ambit and scope judicial person also include. This is a settled position in UOI v. Khaders International Construction Ltd. It is well settled that the provisions of Order XXXIII, 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, is died, it cannot be said that afterwards his legal heirs can get benefit.

Meaning And Scope: Indigent Person
The concept is well explained by the Orissa high court in the case of Manglu Chattar v. Maheshwar Bhoi as follows, the tools of artisans are exempted from the 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 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 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 person also.

III - 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.

View Of High Courts
This issue was also there for consideration before the Madras High court in Chandrareka v. Secretary of State of India, 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 the case of Ganga Dahal v. M.T. Gaura, 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.

IV - 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 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.

mendments By The High Court of This Rule of Order 33
1. Andhra Pradesh: The existing Rule 11, which is same as that of Madras, shall be (2) thereof:
Where the suit has been adjusted wholly or in part by any lawful agreement or compromise or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject – matter suit, but no provision is made from the payment of the court fee or any proportionate part thereof, as it thinks fit.

2. Karnataka: Substitute the Rule 11 with:
11(1) where the plaintiff fails in the suit or is dispauperes or where the suit is withdrawn or where part of the claim is abandoned or the suit is dismissed because the summons of the defendant to appear and answer has not been served upon him in the consequence of the plaintiff failure to pay the requisite charges for service or the suit is so dismissed because the plaintiff does not appear when the suit is called on fro hearing, the court shall Order the plaintiff or any person added as a co plaintiff to the suit to pay the court fee and in the case of abandonment of part of the claim the proportionate court fee which would have been payable by the plaintiff if he had not been permitted to sue as a pauper.

(2) in the cases where the plaintiff is disspaupered the court may, instead of proceedings under sub Rule 1 Order the plaintiff to pay the requisite court fee within a time to be fixed by it and in default dismissed the suit and make an Order for the payment of court fee as in sub Rule 1.

(3) Where the court finds that the suit has been instituted unreasonably or improperly by a next friend on behalf of a minor plaintiff on a cause of action which accrued during the minority of such plaintiff the court may Order the next friend to personally pay the court fee.

3. Kerala: Same as that of the Madras

4. Pondicherry: Same as that of Madras

5. Madras: Substitute the following for the existing Rule 11: where the plaintiff fails in the suit or is dispaupered or where the suit is withdrawn or where the suit is dismissed –

(A). because the summons for the defendant to appear and answer has not been served upon him in consequences of the failure of the plaintiff to pay the court fees or postal charges chargeable for any service.

(B) 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 fee and in the case of abandonment of part of the payable by the plaintiff he had not been permitted to sue as a pauper.

In cases where the plaintiff is dispaupered the court may instead of proceeding under the previous paragraph, Order the plaintiff to pay the requisite court fee within a time to be fixed by it and in default dismiss the suit and make an Order for the payment of the court fee.

Where the court finds that the suit has been instituted unreasonably or improperly by a next friend on behalf of minor plaintiff on a cause of action which accrued during the minority of such plaintiff, the court may Order the next friend to personally pay the court fee."

V - Conclusion
In the end the author would like to conclude the project, that my hypothesis was partially incorrect regarding the position of indigent person when he fails in the suit brought by him, the hypothesis is that an indigent person cannot be made liable to pay anykind of damages or compensation, but according to Order 33 Rule 11 of Code of Civil Procedure, an indigent person cannot be held liable for any kind of damages other than the court fee, i.e. if a person fails in his action as an indigent person then he is bound to pay the court fee of the respective court, and the remaining damages have to be borne by the State Government as if they had committed the wrong.

Whereas if indigent person won the case then he cannot be held liable to any kind of expenses, fee or damages.
~~~~~~~~~~~~~~~
# AIR 1993 Ker. 31
# O.P Neelam Hosiery Works v. State Bank of India
# Chayamani Thripathy v. Dharmananda Panda, AIR 1993 Ori 23
# AIR 1981 Ori 153
# AIR 1993 Ker. 31
# (1891) ILR 14 Mad 163
# AIR 1916 All 327

Books Referred:
· Vol. 3, Doabia, T. S. Justice, ‘CODE OF CIVIL PROCEDURE’, Edition 13, LexisNexis Butterworths Wadhwa Nagpur.
· Vol. 2, Banerjee, A. K., COMMENTARY ON CODE OF CIVIL PROCEDURE, 1908’, Edition-2007, Dwivedi & Company, Allahabad.
· Vol. 2, Rao, V. J., THE CODE OF CIVIL PROCEDURE, 1908, Edition 5, ALT Publications, Hyderabad.
· Takwani, C. K., CIVIL PROCEDURE, Edition 6, Eastern Book Company, Lucknow.
· P.K.Majumdar, COMMENTARY ON THE CODE OF CIVIL PROCEDURE, 1908, Edition 5, Orient Publishing company.
· Vol. 1, Sir John Woodroffe & Amar Ali, COMMENTARY ON CIVIL PROCEDURE CODE, Edition 5.
· Vol.1, A.N.Saha’s, THE CODE OF CIVIL PROCEDURE, Edition 6,. Premier Publishing Company.
· Vol 2, Mulla, THE CODE OF CIVIL PROCEDURE, 17th edition, B.M. Prasad, Lexis Nexis, Butterworth.

Authors contact info - articles The  author can be reached at: sid201291@legalserviceindia.com




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