Before understanding what is the procedure and provisions regarding a suit by a pauper, let us understand what does a pauper means? Basically the simple meaning of the word pauper is the person without is support or a destitute person who depends on aid from public welfare funds or charity. We all are acquainted with the fact that a suit requires payment of fees for activities ranging from institution of the suit itself to service of summons to other costs which the court may incur from time to time during institution of suit and finally for the decree to be executed in case the suit is decided in party’s favour and if not, a whole new range of payments for appeal.
Under the Code of Civil procedure, in case of a civil suit, the provision for the same has been provided under Order XXXIII with the title of suit by indigent person. Basically what it provides for is the special provision for the persons who are too poor to file a suit for themselves. It is quite apparent that the jurisprudential approach behind this provision is to simple enable a person no matter from what economical background is he from, to bring his matter of alleged violation of cause of action to the court. Being in consonance with natural justice, it not only protects bonafide claims of an indigent person but also safeguards interest of the revenue and protects the defendant from harassment.[1]
Order XXXIII Rule 1 provides for an indigent person if he is not possessed of sufficient means to enable him to pay the fees prescribed by law for the plaint in such suit or where no such fees is prescribed, when he is not entitled to property worth one thousand rupees. In both the cases, the property exempt from attachment in execution of a decree and the subject-matter of the suit should be excluded. Any property acquired by the applicant after the presentation of the application for permission to sue as an indigent person and the decisions thereon should also be taken into consideration for the deciding the question whether the applicant is an indigent person.
While there is in fact a special provision for the application by an indigent person which must include particulars which ranges from particulars required in regard in suits with a schedule of any movable or immovable property belonging to the applicant with the estimated value thereof and signature and verification as provided in Order VI Rule 14 and 15.
If the application is not framed properly or in a prescribed manner the court will reject the application. Other grounds for rejection are when the applicant is not an indigent person or where the applicant has within two months before the presentation of the application has disposed of any property fraudulently or in order to get permission to sue as an indigent person or where there is no cause of action or 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 where the suit appears to be barred by law or lastly, where any other person has entered into an agreement with the applicant to finance the costs of litigation.
It is further provided under order XXXIII that if the applicant is duly made by an indigent person with proper prescribed manner, then such an application has to be scrutinised through way of inquiry by the Chief Ministerial Officer of the court. The court has discretion to either adopt that inquiry or even conduct an inquiry of its own. After examination by the court, the court shall issue the notice to the opposite party and to the Government pleader and fix a day for receiving evidence as the applicant may adduce in proof of his indigency or in disproof thereof by the opposite party or by the Government pleader. On the day fixed, the court shall examine the witnesses if any produced by either party, hear their arguments and either allow or reject the application.
So it is to be understood that it is only on the contingency that whether an application is granted by the court or not so that it can take the form of a plaint. The word deemed must be given emphasis as it will create a legal fiction for that application to be treated as a plaint since it exempts the plaintiff to pay suit fees or court fees unlike an actual plaint. It is also peculiar to understand that an application which is rejected by a court will therefore grant time to the applicant to pay court fees since it won’t be called a suit by an indigent person. If such court fees are not paid, it will amount to an order of refusal which shall have effect of res judicata which means the applicant will be barred to file a subsequent similar application.
There is also a provision wherein even if the applicant allowed by the court to treat the plaintiff as an indigent person may be revoked. Such situation may arise where plaintiff is found guilty of vexatious or improper conduct in the course of the suit or where plaintiff’s means are such that he ought not to continue to sue as an indigent person or where the plaintiff has entered into an agreement under which another person has obtained an interest in the subject-matter of the suit.
Henceforth, from the above submissions it can be concluded that a suit by an indigent person or a pauper requires a close scrutiny by the court so that the justice shall not be served on lines of deception and lies whereas, this privilege of non payment of court fees may also be revoked in certain situations. In fact, the state government has also a right to recover court fee along with the power to render free legal aid and services to indigent persons. So there is presence of both, balance between a protection and a check to avail this provision.
Reference:
[1] Venkatasubbaiah v. Thirupathiah AIR 1955 AP 165
