Report No. 54
Suits by Indigent Persons
33.1. Order 33 deals with suits by indigent persons. The Code does not deal with the subject of legal aid, but provides for exemption from Court fees, in respect of persons who are indigent, called by the inappropriate name of "paupers".
33.2. The object is to enable persons who are too poor to pay court fee to institute a suit without payment of it.1 The exemption does not extend to process-fee (rule 8).
1. Jatindra v. Dwarka, 1839 ILR 20 Cal 111 (116).
33.3. This Order has a long history.
In the reign of Henry VII, an Act was passed by the English Parliament as "a Mean to help and speed poor Persons in their suite1". This Act, which permitted the destitute to appear in court without paying the usual court fees at the discretion of the Chancellor, was in force in England, with modification, until 1949.
1. 11 Henry VII, C. 12.
33.4. It enabled him to obtain writs original and writs of subpoena free of charges. The Indian Legislature first dealt with the subject1 in 1939; and the provisions have, with necessary additions and modifications, found a place in successive Codes of Civil Procedure.
1. Act 9 of 1839.
Order 33 and expression "pauper"-Recommendation
33.5. With reference to indigent persons, we have a general recommendation to make on a question of terminology. We recommend that the expression "indigent person" should be used throughout the Code, in place of the present expression "pauper", which is not in harmony with modern attitudes.
Order 33, rule 1-Point not discussed in August & September, 1972
33.6. In Order 33, rule 1, which deals with eligibility to sue, certain modifications, which are summarised below, were proposed by the earlier Report1-
(i) The amount of rupees one hundred was proposed to be raised to rupees one thousand;
(ii) In considering the question of sufficient means, the subject-matter of the suit (case Bombay Amendment) and necessary wearing-apparel were proposed to be excluded;
(iii) The question whether the date of presentation of the application or the date of its hearing should be the relevant date for considering pauperism, was dealt with. The decision on the subject revealed a conflict of views. A provision had, therefore, been recommended to the effect that property acquired by the applicant after presentation of the petition and before decision of the application should be taken into consideration. We agree with these recommendations. We are also of the view that certain other points require to be considered and we proceed to discuss them below.
1. 27th Report, note on Order 33, rule 1.
Order 33, rule 1, Explanation
33.7. The question whether a person suing in a representative capacity, who has no property in his hands in that capacity, can sue as a pauper, has been the subject-matter of debate, as is shown by judicial decisions.1
1. Decisions cited in the 27th Report note not reprinted here.
33.8. Here, reference may be made to the earlier Report1 which has taken a similar view, while referring to the Madras Amendment to Order 33, rule 1, Explanation (iii), which provides that where a plaintiff sues in a representative capacity, the question of pauperism shall be considered with reference to the means possessed by him, in such capacity. It was, however, considered, unnecessary to make such an express provision, though the Commission agreed with the view incorporated in the Madras Amendment.
1. 27th Report.
33.9. We now refer to another point, namely, suits in representative capacity. In a Gujarat1 case, the question arose, whether a trustee who has no trust property in his hands could sue as a pauper on behalf of the trust, even if he is possessed of sufficient means in his individual capacity.
The High Court held-
"The word 'person' in the Explanation to Order 33, rule 1 being capable of both a wide and a narrow meaning, we should give that construction which would advance this salutary remedy and achieve the purpose underlying enactment, so that the facility for institution of a suit without payment of the requisite court-fees can be properly availed of by all persons, who would be otherwise denied the remedy merely because the person had no funds to pay the requisite fees. (The) other2 construction would lead to anomalous results.
The pauper(s), minors and lunatics, who on account of their legal disabilities could not act except through someone else on their behalf, could not sue at all unless the next friend or guardian was a pauper, because they could not present the application in person. Similarly, the trustee of an executor or a Mutavalli could not sue or appeal against a decree against a trust estate unless they were themselves paupers or they chose to put in their own moneys to finance the litigation".
1. Chaman Lal v. Chandanben, AIR 1965 Guj 207 (210).
2. Manoj Rajaji v. Khandoo Baloo, ILR 1939 Born 279 (281); Bharat Abhyodoy Cotton Mills Ltd. v. Kameshwar Singh, AIR 1938 Cal 745.
33.10. Further, in the Gujarat case, it was held that "merely because the test of a wearing apparel could not be fulfilled and no deduction of its value could be claimed by persons possessing no wearing apparel, it could not justify a construction that the word person in the clause refers only to natural persons who can possess wearing apparel. So also, there is no difficulty in complying with rule 2, as regards the presentation of the application by the person himself.
"In such cases of trustees and executors, if the suit is brought in a representative capacity, they could present the application in that capacity, and they could remain present as such before the court to answer any question relating to the trust".
33.11. The proper test in such cases is to see in what capacity a person sues and whether in that capacity he is a pauper. The trustees could, therefore, sue on behalf of the trust, provided they had no sufficient trust moneys in their hand to pay the necessary court fees, even though in their individual capacity they may not be paupers. Resources of the trustees in their individual capacity would be irrelevant. The question whether the word "person" in Order 33, rule 1, Explanation should be taken to include a limited company incorporated under the Companies Act, was left open.
33.12. It is in our opinion desirable to make the position clear on this point.
33.13. It is in our opinion, also desirable to exclude not only the necessary wearing apparel while calculating the means of plaintiff desirous of suing as a pauper, but all property exempt from attachment.
33.14. The basis on which property is exempted from attachment by the law1 is the assumption that the property is necessary for livelihood or that the exemption is otherwise necessary encourage thrift,-all of which can be subsumed under the general rule that the law does not favour property (of the particular kind), being disposed or dissipated or spent away for any purpose. It follows, that the person to whom such property belongs should to only assign it,2 but be discouraged from selling it in order to provide himself with the means for fighting litigation.
1. See discussion as to section 60(1), Proviso.
2. Cf. section 6, Transfer of Property Act.
Recommendation-Order 33, rule 1
33.14. Accordingly, we recommend that for Order 33, rule 1, the following rule should be substituted:-
"1. Subject to the following provisions, any suit may be instituted by an indigent person.
Explanation 1.-A person is an indigent person-
(a) when 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, when he is not entitled to property worth one thousand rupees other than the property exempt as aforesaid and the subject-matter of the suit.
Explanation 2.-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 he is an indigent person.
Explanation 3.-When the plaintiff sues in a representative capacity, the question whether he is an indigent person shall be determined with reference to the means possessed be him in such capacity".