CODE OF CIVIL PROCEDURE 1908

ASSIGNMENT ON

Pauper Suit Appeal

SUBMITTED BY: VIBHU BHARDWAJ

ROLL NO: 2583
FIFTH SEMESTER
SESSION: 2021-2026

SUBMITTED TO: Dr. B.R.N. Sarma

(FACULTY OF CIVIL PROCEDURE CODE AND LAW OF LIMITATIONS)

This final draft is submitted in fulfillment of the project in Civil Procedure Code and Law of
Limitations for the completion B.A., LL. B. (Hons.)

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

MARCH 2023
 TABLE OF CONTENTS

TABLE OF CONTENTS ..................................................................................................................................... 2

CASE LAWS ............................................................................................................ Error! Bookmark not defined.

INTRODUCTION ................................................................................................................................................ 6

ORDER 33: SUITS BY INDIGENT PERSON .................................................................................................. 9

I. SCOPE AND OBJECT ........................................................................................................................................ 9

II. APPLICATION AND PROCEDURE FOLLOWED BY AN INDIGENT PERSON ........... Error! Bookmark not defined.
ORDER44: APPEALS BY INDIGENT PERSON ........................................................................................... 15

CONCLUSION ................................................................................................................................................... 16

BIBLIOGRAPHY .............................................................................................................................................. 17

Page 2
DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the B.A.LL. B(Hons.) project report titled

“Pauper Suit Appeal” submitted at CHANAKYA NATIONAL LAW UNIVERSITY, is an

authentic record of my work carried out under the supervision of Dr. B.R.N. Sarma, faculty
of CIVIL PROCEDURE CODE AND LAW OF LIMITATIONS. I have not submitted this
work elsewhere for any other degree or diploma. I am fully responsible for the contents of my
project.

Vibhu Bhardwaj

Roll No. 2583

B.A., LL. B.(Hons.)

Page 3
 ACKNOWLEDGMENT

The researcher takes this opportunity to express his profound gratitude and deep regards to his
guide Dr. B.R.N. Sarma, for his exemplary guidance, monitoring and constant encouragement
throughout the course of this project. The blessing, help and guidance given by him from time
to time shall carry the researcher a long way in the journey of life on which the researcher is
about to embark.

The success and final outcome of this project required a lot of guidance and assistance from
many people and I am extremely privileged to have got this all along the completion of this
project.

Last, but not the least, I am thankful to all the members of my family, friends and teachers
without whose assistance and encouragement I could not have completed my thesis.

Vibhu Bhardwaj

AIMS AND OBJECTIVES

Page 4
The aims of the researcher are:

1. To understand the meaning of Pauper suit appeal

2. To understand the procedure for institution of pauper suit appeal

HYPOTHESIS

The researcher hypothesizes that:

India being a welfare State provides the necessary Legal Aid and assistance to the poor and
the downtrodden. Order XXXIII of the Code of Civil Procedure, 1908, is one such example of
Legal Aid rendered to Indigent Persons which inter-alia provides for the institution of Civil
Suits by Indigent Persons. Pauper suit Appeal is one of the best mechanisms for indigent
persons to raise their concern and fight for their interest.

RESEARCH QUESTION

1. What is pauper suit appeal?

2. How a pauper suit appeal is instituted?

RESEARCH METHODOLOGY

The researcher has adopted the doctrinal method of research to look into the menace of child
trafficking. During the commission of this project, he consulted various primary & secondary
sources such as books, government websites, and articles. This method helped the researcher to
paint a vivid picture of the issue concerned.

Page 5
 INTRODUCTION

India is a welfare state, therefore it provides the necessary legal aid and support to the poor
and the disadvantaged. Order XXXIII of the Code of Civil Procedure (1908), which among
other things permits destitute persons to file civil actions, is one such example of legal
assistance supplied to indigent people. The term “Pauper” was once used, but “Indigent
Person” eventually replaced it.

According to the Court Fees Act of 1870, the plaintiff, or the person (or persons), is/are
required to pay the relevant court fees at the moment the civil litigation is established. The
poor, however, do not have the money to cover the court costs.

Order XXXIII then intervenes to save them.

The following definitions of an indigent person are given in Explanation I to Rule 1 of Order
XXXIII: 1. If he lacks sufficient means (other than property exempt from attachment in
execution of a decree and the subject of the suit) to enable him to pay the fee specified by law
for the plaint in such suit; or 2. In the absence of such a fee, if the defendant is not entitled to
any property valued at Rs. 1,000 other than the property free from attachment in execution.

Explanation II of Rule 1 states that any property obtained by a party after he has submitted his
application for leave to sue as an indigent person but before to the application’s decision shall
be taken into consideration in deciding whether or not the applicant is an indigent party.

When “not possessed of sufficient means” is used to define “indigent person” in Explanation I
to Order XXXIII Rule 1, it refers to a person’s capacity to pay the Court Fee set by law for
the Plaint in such a case. The goal is to have enough resources and the potential to raise
money to pay the court charge, not to own the land.

Page 6
It is crucial to comprehend Order XXXIII’s procedure and how applications to sue as an
indigent person are handled before reading the rest of this article.

In the first instance, a person in need may ask the court to waive court costs. But when
making such applications to the Court, it’s crucial to keep in mind that the application:

1. Contains the information required for litigation complaint plaints; 2. Is signed and verified
using the procedures outlined in Order VI Rules 14 and 15, respectively, for the signature
and verification of pleadings.
2. Contains a list of the applicant’s personal property, both movable and immovable,
together with an estimation of its value.

If an application complies with the aforementioned requirements and the applicant has been
granted an appearance waiver by the court, the application may be legally submitted with the
court by either the applicant in person or by his authorised agent. Depending on the situation,
the court may interrogate the applicant regarding the legitimacy of the claim and his property
after receiving the application, either in person or through an agent.

1. When an application is not prepared and presented in the proper manner

2. when the applicant is not needy, when either of the following situations occurs, the court
will prima facie reject the application.
3. Where there is no basis for the lawsuit;
4. When there is no legal basis for the case
5. when the applicant has made a legal arrangement involving the dispute in which a third
party has gained an interest
6. or when the claims suggest that the litigation would be frivolous.

It is noteworthy that when the court denies a request to file a lawsuit on behalf of an indigent
person, it will provide the applicant time to pay the court expenses. An ruling rejecting a
request to file a lawsuit on behalf of an indigent individual shall preclude a subsequent
request of a similar nature. This does not prevent him from filing a lawsuit, nevertheless, as

Page 7
long as he covers the fees incurred by the Government pleader and the opposing party in
fighting the application.

If there is no reason to reject the application, the court may give notice to the opposing party
and the head of the government for at least ten days, in order to receive any evidence that the
application might present to demonstrate the applicant’s need, as well as to hear any
arguments that might be raised. .

If the Court doesn’t specify otherwise, the Chief Ministerial Officer of the Court is
responsible for conducting all inquiries into the applicant’s indigence. However, the Court has
the option of adopting the Officer’s findings or conducting its own inquiries. The Court will
hear the arguments on the scheduled hearing day following the receipt of the evidence and
witness examination. The applicant will then be permitted to file a lawsuit as an indigent
individual, or the court will deny their request.

In general, a person is considered to be destitute if they do not have the financial resources to
pay the court fees when they are required to do so or if they are not eligible for property
valued at $1,000 when the court fees are not specified. The property exempted from
attachment in execution of a decree and the subject matter of the lawsuit are not taken into
consideration in any of these cases when determining the impoverished person’s financial
situation.1

It Is possible to determine whether a person has enough money to file a lawsuit as an indigent
person or not by looking at factors like their employment status, total income, retirement
benefits like pensions, ownership of assets that have not yet been realised, debt, and any
financial assistance they have received from family or close friends. According to the decision
in Chayamani Tripathy and others v. Dharmananda Panda, “term ‘not possessed of sufficient
means’ to enable him to pay the fee prescribed is the requirement for permission to sue as
indigent person.”

1 Union Bank of India v. Khader International Construction, (2001) 5 SCC 22.

Page 8
ORDER 33: SUITS BY INDIGENT PERSON

I. SCOPE AND OBJECT

The main goal of order 33 is to make it possible for people in vulnerable financial situations
to access justice by bringing lawsuits or appeals without having to worry about paying court
costs, as is evident from a simple reading of the requirements listed in the order. It is
regrettable that for a sizable portion of the public, justice in our democratic system still
remains a pipe dream. Enacting a law and enforcing a law are two different things. In India,
generally speaking, only those with significant financial means may access justice. The
money is required not only to cover the expensive court fees, but also to pay for legal
representation and other incidentals.

The tribunal cannot decline to exercise Its jurisdiction when a destitute individual approaches
it with a claim for damages for an injustice done to him simply because he lacks the financial
resources to pay the filing fee. A person might have filed a lawsuit using CPC order 33 as an
indigent person prior to the claim tribunal’s formation. Since a Special Claims Tribunal has
been established in accordance with the act, it can be argued that a poor person who lacks the
financial resources to pay the necessary costs is completely excluded from suing for damages
after suffering harm. An individual cannot be denied access to justice just because they lack
the financial capacity to make the required.

Page 9
In order to file a lawsuit in a civil court, the plaintiff must pay the legal filing fee as well as
any additional court costs. The Court-Fees Act (7 of 1870) sets certain fees as requirements.
However, there are some people who are unable to afford the court charge, and the purpose of
this decision is to allow those people to file and pursue lawsuits without having to pay court
costs. The goal and objective of Order 33 of the Code of Civil Procedure are to make it
possible for someone who is struggling with poverty or does not have enough money to cover
court costs to seek justice. In accordance with Order 33 of the Code of Civil Procedure, such
an indigent individual is exempt from paying the first-instance court fee and is permitted to
file a lawsuit or pursue an appeal in forma pauperis.2

Ⅱ. APPLICATION AND PROCEDURE FOLLOWED BY AN INDIGENT PERSON

In order to be granted the advantages to which they would be entitled as an indigent person, a
person must first submit a court with an application before filing a lawsuit as an indigent
person. The application need not be submitted to the court directly; submission to the
appropriate office of the court is sufficient. The court must be convinced that the applicant
lacks resources or is a pauper before granting the application. If the person making the claim
of indigence and submitting an application for it is excluded from court, an authorised agent
may file the application on their behalf.

Following application submission, the court may interview the applicant to determine the
validity of the claim and whether or not the applicant falls within the definition of pauperism.
The court may interview anyone other than the applicant, but only to determine the
pauperism element and not with regard to the claim. “The Petitioner who submits an
application is required by Order XXXIII to personally present the application. According to
Rule 3, the applicant must be able to respond to all pertinent questions pertaining to the
application and may also be cross-examined by the court.

2 Supra note 5.

Page 10
The application may or may not be rejected by the court following the examination. The
grounds for denying the application are outlined in Rule 5 of the order. Whether or not the
reasons listed in rule 5 are exhaustive has been a subject of discussion. Regarding the
thoroughness of the grounds provided, many high courts have opposing opinions.

1) The application is assumed to be denied on the first ground if it does not

adhere to Rules 2 and 3. The petitioner must disclose his assets with the utmost good
faith, and any willful deviation from this criterion must result in the application being
rejected. However, if the omission is made in good faith and without malice, the
application won’t be rejected. The inclusion will be considered to have been made in
good faith if the inclusion or exclusion of the property has no bearing on the person’s
status as a destitute person. Returning the petition for amendment and then finding out
whether the addition was approved is the right course of action to be taken. The
application is also rejected if the court fee value is not calculated because it does not
follow rules 2 and 3 of the order. If the schedule of the applicant’s movable and
immovable property and its estimated value is not attached to the application and the
collector indicated in its report that the applicant has enough movable property, this
would be against Rule 2 and the application would be rejected in this situation as
well.
2.When the applicant is not a person in need, that is the second ground. According to
Rule 5, the court may reject the application if it is not convinced that the applicant is
not an indigent individual. A woman filed a petition for the dissolution of the marriage,
recovery of the dower debt, and recovery of gold and silver jewellery in the case of
Abdul Khalique v. Yasmin Sultan. A petition to suit as an indigent person was filed in
accordance with order 33, rule 1. The court determined that the wife may file the
lawsuit as an indigent person since she lacked the necessary resources and was forced
to leave the marital home without her gold and silver jewellery.
.
2) The third reason is when property is disposed of fraudulently. In other words, if the
applicant sold off property two months before to making the application to qualify as
an indigent person for legal action, their application will be refused in accordance
with this law.

Page 11
 3) 3) The absence of a cause of action constitutes the fourth ground. The application
must demonstrate a valid, enforceable cause of action that can be pursued in court,
requires a response, and is not otherwise limited by the statute of limitations or any
other legislation.

4) The transfer of interest in the subject matter of the proposed lawsuit constitutes the
fifth ground. It describes situations in which the applicant has agreed into an
agreement pertaining to the case’s subject matter, under which any other person has
acquired an interest in that subject matter.
5) 5) The absence of any currently in effect laws constitutes the sixth ground. It indicates
that the application will be denied if there is an allegation in the application that
demonstrates that the lawsuit would be prohibited by current law. The court must
consider the application’s accusations before deciding whether or not to dismiss the
application.
6) The final justification is when there is an arrangement to fund the legal action. If a
third party is paying for the entire legal process, that would be a basis to deny the
application. The court will set a date on which it will order the applicant to produce
any evidence that might show that the applicant is an indigent person after carefully
reviewing the application and ruling against every reason for rejecting it. The
opposing party and the government pleader shall both receive at least 10 days’ notice
of the same. The pauperism issue should be the only subject of the evidence, not the
case’s merits. The notice is another requirement that must be followed by the court. If
a notice of ten clear days is not given, the flaw is fatal, and any judgement entered by
the court must be overturned because it was made in violation of the law..3

Following consideration of the applicant’s or the opposing party’s evidence, Rule 7 states
whether to permit or deny the applicant’s request to bring the lawsuit as an indigent person.
Only once the notices required by Rule 6 have been sent and served, is this step attained.
Rules 8’s provisions do not apply to high court applications for revision; rather, they only
apply to procedures in the originating court. When accounts of the sums owed to the plaintiff
for mercantile gains were obtained in accordance with a preliminary decree, a decision by the

3 Abdul Wakil Khan v Bibi Talimunnissa, AIR 1950 Pat 517. 22

Radhika
Prasad v Shyama Charan, AIR 1966 Pat 387.

Page 12
court was made based on those accounts, and an order was then issued directing the payment
of court fees,

On the sum determined to be owed, it was decided that such an order could not be granted
because the case had to be considered pending until a final judgement was rendered. The
legal community is divided on the issue of whether a judge can permit the filing of a lawsuit
prior to granting permission based on indigence. According to the Patna High Court, a suit
cannot be filed until leave is granted and an order under Order 7 rule 10 can only be made in
that suit. 4

When the plaintiff, who was first given permission to file a lawsuit on the grounds of
indigence, no longer qualifies as an indigent person after the lawsuit is filed, Rule 9 provides
for a contingency. If the plaintiff no longer qualifies as being poor, he will be required to pay
the court charge that he would have had to if he had been a non-indigent individual. The
decision to disqualify the plaintiff is subject to the court’s discretion. Before the case is
resolved, the application under this regulation should be resolved. To dissuade the plaintiff
while the case is pending is not a good practise. An application by the defendant under this
rule to dispauper the plaintiff on the grounds that he was in possession of sufficient means on
the date of application is not maintainable if leave to sue was granted after notice to the
defendant, who did not present. The issue of pauperism and the payment of court costs are
connected. The state’s primary interest is with the payment of court costs. 5

ORDER44: APPEALS BY INDIGENT PERSON

4 Gupteshwar v Chaturanand AIR 1950 Pat 309

5 Jeypore Evangical LutheranChrch v Samuel Santhi Kumar Chaudhry AIR 1985 Ori 195

Page 13
The issue that arises under Order 44’s Rule 1 is whether or not the applicant is an indigent
person. At this point, there is no need to discuss the case’s merits. If the application is turned
down in accordance with Rule 1, it is clear that the court is not convinced by the applicant’s
assertion that he is a poor person. It doesn’t equate to a determination that the appeal cannot
be admitted on the basis of its merits.

The Calcutta High Court claims that the word “person” does not imply a firm. The Orissa
High Court decided that “Person” should have a broad definition, nonetheless. The company
is entitled to a court fee waiver because it is a recognised legal entity.

In one instance, the petition was denied on the grounds that the defendant had sufficient funds
to cover the court fee for the memorandum of appeal after she paid Rs 571 in maintenance
arrears to the court to her credit. The petitioner had already received a maintenance order and
was attempting to raise it through an in forma pauperis appeal.

The same high court, however, decided in a later case involving an appeal stemming from a
partition dispute that the assets covered by the decision granted in the appellant’s favour
should be excluded from the subject matter of the lawsuit. The equity of redemption is used
when a straightforward mortgage is being enforced. The decree being appealed by the
defendant must be justified in the application for authorization to proceed informally because
it is not the subject of the lawsuit. When the appellate court asks the lower court to look into
pauperism, it is still within its rights to do so. It is not necessary to accept the lower court’s
ruling; instead, the decision to grant leave must be made on your own.

Current practise dictates that, to the extent practicable, the same regulations that govern poor
people’s cases also govern their appeals. As a result, the application for leave to appeal as a
pauper described in this regulation must be submitted in person by the applicant, just like an
application for leave to suit as a pauper. The words “in all matters, including the presentation
of a pauper’s petition did not apply to pauper appeals” have been added to make this more
obvious.

Page 14
Because appeals filed in accordance with Letter Patent Clause 15 will also be subject to the
provisions of Order 33 and Order 44b.

Current practise dictates that, to the extent practicable, the same regulations that govern poor
people's cases also govern their appeals. As a result, the application for leave to appeal as a
pauper described in this regulation must be submitted in person by the applicant, just like an
application for leave to suit as a pauper. The words "in all matters, including the presentation
of a pauper's petition did not apply to pauper appeals" have been added to make this more
obvious.

Because appeals filed in accordance with Letter Patent Clause 15 will also be subject to the
provisions of Order 33 and Order 44b..

Thus, it was determined that order 33 rule 12 has not been followed when the schedule of
the applicant’s movable and immovable possessions, along with an estimated value for each,
is not affixed to the application or memorandum of appeal.

For rule 1, a memorandum of appeal and an application for leave to appeal as a pauper must
be submitted separately.

They must be submitted with an appealing decision and decree. When the pauper’s
application is decided, the appeal may not automatically be rejected. The appellant may
nevertheless consider the appeal to be pending even if he intends to continue it as a regular
appeal and pay the full court costs. If the judge permits the appellant to show up as a pauper,
the court is not compelled to dismiss the case. When a memorandum of appeal that
accompanied a request for authorization to sue as a pauper was not stamped, the application
to sue as a pauper was rejected; nonetheless, the memorandum of appeal was not also
rejected..

Page 15
If the court grants time for payment of the court fee at the same time it denies leave to appeal
and that fee is paid within the time given, the appeal must be deemed to have been presented
for purposes of limitation at the time of its original presentation. The denial of the application
for leave to file the appeal in forma pauperis does not entail the denial of the memorandum of
appeal.

An order denying permission to file an appeal as a pauper does not give rise to an appeal
under the Code of Civil Procedure.

CONCLUSION

In conclusion, a person who does not have the financial means to pay the court fee when the
fee is required by law or who does not have the right to property worth one thousand rupees
when the court fee is not required is considered to be indigent according to explanation I to
Rule 1 of Order 33 of the Code of Civil Procedure. In all situations, the topic of the lawsuit
and the property free from attachment in the execution of a decree shall not be used to
determine the financial worth or capacity of such Indian gentleman. Additionally, factors like
a person’s employment status, overall income, pension benefits, ownership of realisable
unencumbered assets, total debt, and financial support from family or close friends can be
considered in determining whether a person has the necessary resources or is in need of
assistance to pay the required court fee. As a result, the term “sufficient means” in Order 33

Page 16
Rule 1 of the Code of Civil Procedure refers to the capability or ability of a person to raise
money through legitimately available means in the ordinary course in order to pay court fees.
Order XXXIII empowers the poor, destitute, and oppressed to seek justice by exempting them
from paying the required Court fees in the initial instance if they meet the criteria for an
indigent person as stipulated under Order XXXIII. Such poor parties are permitted to file a
lawsuit in forma pauperis under Order XXXIII. It is important to note that when deciding
whether to grant such requests, the Legislature’s intent must be properly taken into account.
The people who have the resources to sue should not be permitted to do so, while those who
are truly in need and lack the means should receive the aid they require. Access to justice
being denied is also unfair.

*******************************************************************

BIBLIOGRAPHY

Books:

1) Mulla, The Code of Civil Procedure, Volume 4

2) C.K.Takwani, Civil Procedure with Limitation Act, 1963.

Websites:

1) http://www.legalservicesindia.com/article/article/suits-by-indigent-
person12791.html
2) http://www.legalblog.in/2011/07/indigent-person-under-code-of-civil.html

Page 17
3) https://www.latestlaws.com/articles/all-about-suits-by-indigent-
personsundercode-of-civil-procedure/
4) https://www.academia.edu/29278279/Cpc

Page 18