Report No. 54

Recommendation

33.32. In the light of the above discussion, we recommend that Order 33, rule 7, should be revised as follows:-

"7. (1) On the day so fixed or as soon thereafter as may be convenient, the Court shall examine the witnesses (if any) produced by either party, and may examine the applicant or his agent and shall make a full record of their evidence.

(1A) The examination of the witness under sub-rule (1) shall be confined to the prohibitions in clauses (b), (c) and (e) of rule 5, but the examination of the applicant or his agent may relate to any of the prohibitions referred to in rule 5.

(2) The Court shall also hear any argument which the parties may desire to offer on the question whether, on the face of the application and of the evidence (if any) taken by the Court under rule 6 or under this rule, the application is or is not subject to any of the prohibitions specified in rule 5."

Appeal against order under Order 33, rule 7-Recommendation

33.32A. We are of the view that an order under Order 33, rule 7, rejecting the application, should be made appealable,1 since it prevents the applicant from enforcing his right to sue.2

1. Cf. Discussion as to Order 33, rule 5.

2. To be carried out under Order 43, rule 1(nn).

Order 33, rule 8

33.33. We now come one point relevant to Order 33, rule 8. In our Questionnaire, we had included the following Question:1

"30. How far do you consider it the duty to the State to provide,-

(a) to a person without any means, or

(b) to a person with inadequate means, the following facilities or concessions in full or part-

(a) Legal aid;

(b) exemption from payment of process fees."

Replies to this question are generally favourable, and we think that the suggestion in part (b) of the question relating to process fees should be implemented.

1. Question 30.

Recommendation

33.34. Accordingly, we recommend the following amendment in Order 33, rule 8-

"In Order 33 rule 8, for the words and brackets "(other than fees payable for service of process)", the words "or fees payable for service of process" should be substituted."

Order 33, rule 9A (New)-Legal aid to paupers

33.34A. Where a person permitted to sue as an indigent person is not represented by a pleader, it is desirable that the court should assign a pleader to him at the expense of the State. As to the mode of selecting pleaders to be so assigned, the facilities to be allowed to such pleaders by the courts and the fees payable to such pleaders by the Government and other matters, the High Court can make rules.

Recommendation

33.34B. Accordingly, we recommend insertion of the following rule-

"9A. Where a person permitted to sue as an indigent person is not represented by a pleader, the Court shall assign a pleader to him at the expense of the State.

(2) The High Court may, with the previous approval of the State Government, mace rules providing for:-

(a) the mode of selecting pleaders to be assigned under sub-section (1);

(b) the facilities to be allowed to such pleaders by the Courts;

(c) the fees payable to such pleaders by the Government, and, generally, for carrying out the purpose of sub-section (1)."

Order 33, rule 15 and costs

33.35. Order 33, rule 14, allows the filing of a second suit by a person where an application by that person to sue as a pauper is refused. But the condition for the second suit is, that the applicant "first pays the costs" of the Government and of the opposite party, incurred in opposing the earlier application. Whether this payment of costs is a condition precedent to the very institution of the second suit, is a matter on which the position is not clear from the decisions. One view1 is, that payment of costs is not a condition precedent, but when the matter is brought to the notice of the court, the court should reject the plaint or stay the suit pending payment. The Madras view2 is that the costs have to be paid before institution of the suit. In any case, if costs are paid long after the filing of the suit on insufficiently stamped paper, the suit is liable to be dismissed. It was recommended in the Report of the earlier Commission on the Code, that there should be a power in the court to give time (in suitable cases), for payment of the costs.

1. Abdul Rehman v. Aminbai, AIR 1943 Bom 409 (411) (reviews cases).

2. (a) Ram Krishna v. Ramajoga, AIR 1943 Mad 547 (548). (b) Siva Rao v. Ramajoga, AIR 1943 Mad 547 (548).

33.36. We agree that the court should have power to grant time. Further, we think, that it should be made clear that where the costs not paid within the specified time, the plaint should be rejected.

Recommendations

33.37. Accordingly, the following re-draft of Order 33, rule 15 is suggested:-

"15. (1) An order refusing to allow the applicant to sue as a pauper shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue; but the applicant shall, subject to the provisions of sub-rule (2), be at liberty to institute a suit in the ordinary manner in respect of such right.

(2) No such suit shall be entertained unless the applicant pays the costs (if any) incurred by the State Government and by the opposite party in opposing his application for leave to sue as a pauper; and where such costs are not paid at the time of institution of the suit or within such period thereafter as the court may allow, the plaint, shall be rejected".