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2012 Supreme(Mad) 2333
High Court of Judicature at Madras
P. DEVADASS, J.
Ruckmani
Versus
Venkataraj
C.M.A. No. 702 of 2005
Decided on : 08-06-2012
For the Appellant:M/s. Sarvabhauman Associates, Advocate.
For the Respondent:S. Kadarkarai, Advocate.
Access to justice cannot be denied to an individual merely because they do not have the means to pay the prescribed fee.
Headnote:
Indigent Person - Civil Procedure - Order 33 Rule 1 C.P.C., Order 44 C.P.C. - Summary of Acts and Sections: Order 33 Rule 1 C.P.C., Order 44 C.P.C. - The judgment discusses the concept of an indigent person and the provisions under Order 33 Rule 1 C.P.C. and Order 44 C.P.C. It highlights the criteria for determining indigency, the purpose of the provisions, and the court's interpretation of 'sufficient means' to pay court fees. The judgment emphasizes that access to justice cannot be denied based on the inability to pay prescribed fees and provides examples of factors considered in determining indigency. The court also clarifies that being a convicted person does not disqualify one from seeking leave to sue as an indigent person. The judgment concludes by granting the appellant leave as she is deemed an indigent person and directs the Trial Court to proceed without insisting on the payment of court fees.
Fact of the Case:
The appellant sought delivery of possession of a property from the respondent and requested leave to sue as an indigent person due to inability to pay the court fee. The District Court refused her leave on the grounds of lack of proof of indigency and a previous conviction in a cheating case.
Finding of the Court:
The Trial Court's refusal of leave to sue as an indigent person was overturned by the appellate court, granting the appellant leave and directing the Trial Court to proceed without insisting on the payment of court fees.
Issues: The main issue was whether the appellant qualified as an indigent person under Order 33 Rule 1 C.P.C. and if the Trial Court's refusal of leave was justified.
Ratio Decidendi: The court emphasized that access to justice cannot be denied based on the inability to pay prescribed fees and clarified that being a convicted person does not disqualify one from seeking leave to sue as an indigent person. The judgment also highlighted the criteria for determining indigency and the purpose of the provisions under Order 33 Rule 1 C.P.C. and Order 44 C.P.C.
Final Decision: The Civil Miscellaneous Appeal was allowed, the Trial Court's order was set aside, and the appellant was granted leave to sue as an indigent person. The Trial Court was directed to take the suit on file without insisting upon payment of Court fee, and proceed further according to law.
Key Points: - The judgment grants leave to sue as an indigent person, reversing the Trial Court’s denial. (!) (!) - Indigency is assessed under Order 33 Rule 1 CPC, focusing on whether the person has sufficient means to pay court fees; wealth or life estate alone may not preclude indigency if there are no readily convertible funds. (!) (!) (!) (!) - Being convicted of a crime does not automatically disqualify a person from seeking leave to sue as an indigent person. (!) - The respondent’s lack of proof of indigency and other circumstances (e.g., sale of property) were considered in the appellate court’s analysis. (!) (!) - The Court fee due on the plaint was Rs. 75,000; the appellate court directed the Trial Court to proceed without insisting on payment of court fee. (!) (!) - Order 33 and 44 CPC enable filing as an indigent person and defer payment of court fees at the initial stage; fee becomes payable later if the suit succeeds. (!) (!) (!)
How to determine if a person is an indigent person under Order 33 Rule 1 CPC?
What are the criteria for 'sufficient means' to pay court fee under Order 33 Rule 1 CPC?
What is the effect of a conviction on a person’s eligibility to seek leave to sue as an indigent person?
1. The petitioner/ plaintiff in O.P.No.4 of 2004 on the file of District Court, Ootacamund, whose prayer for leave to sue as an indigent person since has been refused, has directed this Civil Miscellaneous Appeal.
2. In the suit, she sought for delivery of possession of suit property from the defendant/respondent. The Court fee due thereon is Rs.75,000/-. She sought for leave of the Court to sue as an indigent person, now, without paying the Court fee. The District Court refused her leave on two grounds. Firstly, she has not proved that she has no means to pay the Court fee. Secondly, she was convicted in a cheating case.
3. According to the learned counsel for the appellant, stamping the appellant a criminal, the leave sought for cannot be refused. Actually, she had only life estate in a property. In 1997 along with her son she signed in the conveyance deed. Now, she has no property, no money to pay the huge Court fee.
4. The learned counsel for the respondent would submit that in her affidavit except the word that she is an indigent person, nothing has been stated. Ex.B1 shows that she had sold a property. So she has money but has no intention to pay the Court fee. In the circumstances, the Trial Court has rightly refused her leave.
5. Order 33 Rule 1 C.P.C. deals with giving permission/leave to sue as an indigent person. It has been popularly called a "pauper suit" and the person seeking the leave has been called "a pauper". Since the word "pauper" is an indignant word quite demeaning in nature, in 1976, by way of an amendment, instead of "pauper" the word "indigent person" has been introduced in Order 33 Rule 1 Civil Procedure Code.
6. Order 33, Rule 1 C.P.C. runs as under:
"1.Suits may be instituted by indigent person: Subject to the following provisions, any suit may be instituted by an indigent person.
Explanation I.-A person is an indigent person-
(a) if he is not possessed of sufficient means (othr 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, if he is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree, and the subject-matter of the suit.
Explanation II.- 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 or not the applicant is an indigent person.
Explanation III.-Where the plaintiff sues in a representative capacity, the question whether he is an indigent person shall be determined with reference to the means possessed by him in such capacity."
7. Order 44 of the Code of Civil Procedure provides for instituting an appeal as an indigent person.
8. The concept of indigent person has been discussed in Corpus Juris Secundum (20 CJS Costs 93) as follows:
"93. What constitutes indigency.- The right to sue in forma pauperis is restricted to indigent persons. A person may proceed as poor person only after a court is satisfied that he or she is unable to prosecute the suit and pay the costs and expenses. A person is indigent if the payment of fees would deprive one of basic living expenses, or if the person is in a state of impoverishment that substantially and effectively impairs or prevents the pursuit of a court remedy. However, a person need not be destitute. Factors considered when determining if a litigant is indigent are similar to those considered in criminal cases, and include the party's employment status and income, including income from government sources such as social security and unemployment benefits, the ownership of unemcumbered assets, including real or personal property and money on deposit, the party's total indebtedness, and any financial assistance received from
