Suits by Indigent Persons

Rule 6: where the Court sees no reason to reject the application on any of the Rule 5 grounds, it fixes a day for receiving evidence of the applicant's indigency or in disproof of it, giving at least ten days' notice to the opposite party and to the Government Pleader.

Rule 7: on that day the Court examines the witnesses, hears the argument, and then either allows or refuses to allow the applicant to sue as an indigent person.

Rule 8: where the application is granted, it is numbered and registered and shall be deemed the plaint in the suit, and the suit proceeds in the ordinary manner, except that the plaintiff pays no court fee or fees for service of process.

The seven grounds of rejection: Rule 5

This is the list an essay must contain. The Court shall reject an application where:

(a) it is not framed and presented in the manner prescribed by Rules 2 and 3 (b) the applicant is not an indigent person (c) he has, within two months next before presenting the application, disposed of any property fraudulently or in order to be able to apply as an indigent person (d) his allegations do not show a cause of action (e) he has entered into an agreement with reference to the subject matter of the proposed suit under which another person has obtained an interest in it (f) the allegations in the application show that the suit would be barred by any law for the time being in force (g) any other person has entered into an agreement with him to finance the litigation

The proviso to clause (c) softens it: no application shall be rejected if, even after taking into account the value of the property disposed of, the applicant would still be entitled to sue as an indigent person. So the ground bites only where the disposal actually made the difference.

Note the shape of the list. Clauses (a) and (b) are about the application and the applicant. Clauses (d) and (f) are about the merits, and they mirror Order VII Rule 11(a) and (d): no cause of action, or barred by law. Clauses (c), (e) and (g) are all anti-abuse provisions, aimed at a person who has manufactured his poverty, sold an interest in the claim, or found a backer.

What happens to the fee in the end

The Code does not forgive the fee; it postpones it and then recovers it where it can.

Rule 10: where the indigent person succeeds, the Court shall calculate the amount of court fees which would have been paid had he not been permitted to sue as an indigent person, and that amount shall be recoverable by the State Government from any party ordered by the decree to pay it, and shall be a first charge on the subject matter of the suit.

Rule 11: where he fails, or is dispaupered, or the suit is withdrawn or dismissed in the circumstances the rule specifies, the Court shall order him, or any co-plaintiff, to pay the court fees which would have been paid had he not been permitted to sue as an indigent person.

Rule 11A extends that to cases where the suit abates by reason of the death of the plaintiff.

Rule 9 allows the Court, on the application of the defendant or the Government Pleader and after notice, to dispauper the plaintiff, that is, withdraw the permission, where he is guilty of vexatious or improper conduct in the course of the suit, or where his means are such that he ought not to continue to sue as an indigent person, or where he has entered into an agreement under which another person has obtained an interest in the subject matter.

Rule 9A is the access-to-justice provision: where a person is allowed to sue as an indigent person, the Court shall, where the circumstances so require, assign a pleader to him, if he is not represented by one.

Rule 15 provides that an order refusing permission to sue as an indigent person bars a fresh application of the same nature in respect of the same right to sue; but the applicant may still institute a suit in the ordinary manner, on paying the court fees.

Rule 15A and Rule 17 extend the provisions of the Order, so far as may be, to defence by an indigent person and to a person allowed to appeal as an indigent person.

A worked example

Hema's landlord has locked her out of her home. Her claim is worth about Rs. 8,00,000 and the court fee on it is far beyond her. Her only assets are her household utensils and clothing.

Can she apply? Her utensils and clothing are the kind of property exempt from attachment in execution, and the house is the subject matter of the suit. Both are excluded, so on the Explanation to Rule 1 she is not possessed of sufficient means to pay the fee, and she is an indigent person.

What does she file? An application containing the particulars required in a plaint, with a schedule of her property and its estimated value, signed and verified, presented in person under Rule 3.

What happens next? The chief ministerial officer inquires into her means under Rule 1A. If the Court sees no ground for rejection, it fixes a day under Rule 6 and gives at least ten days' notice to the landlord and to the Government Pleader, so both can test the claim of indigency.

The application is granted. Under Rule 8 it is numbered and registered and is deemed the plaint, and the suit proceeds without court fee or process fees. Under Rule 9A the Court may assign her a pleader.

Change one fact. Suppose she transferred her gold to her sister six weeks before applying, in order to qualify. Rule 5(c) applies, since that is within two months and was done to enable her to apply. But by the proviso, if she would still be indigent even counting the gold, the application is not rejected.

Change another. Suppose she agreed with a financier that he would fund the case for a share of the recovery. Rule 5(g) requires rejection, and if the agreement came to light later, Rule 9 allows her to be dispaupered.

She wins. Rule 10: the court fees she would have paid are recoverable by the State Government from the party ordered by the decree to pay them, and they are a first charge on the subject matter.

She loses instead. Rule 11: the Court orders her to pay the court fees she would have paid had she not been permitted to sue as an indigent person.

Her application is refused at the outset. Rule 15 bars a fresh application of the same nature on the same right to sue, but she may still bring an ordinary suit if she can find the fee.

What it does not mean

It is not a waiver of the court fee. The fee is postponed and recovered under Rule 10 or Rule 11 at the end.

It is not decided on the applicant's word. Rule 1A requires an inquiry into means, and Rule 6 requires notice to the opposite party and the Government Pleader.

The subject matter of the suit is not counted in deciding indigency, nor is property exempt from attachment.

Permission is not irrevocable. Rule 9 allows dispaupering for vexatious conduct, improved means, or an agreement giving another an interest in the subject matter.

A refusal does not end the claim. Rule 15 bars a fresh application, not an ordinary suit on payment of the fee.

Quick revision

Indigent person, Explanation to Rule 1: not possessed of sufficient means to pay the prescribed court fee, or, where no fee is prescribed, not entitled to property worth one thousand rupees; in both cases excluding property exempt from attachment and the subject matter of the suit. Property acquired after the application and before its decision counts.

Application: particulars of a plaint plus a schedule of property, signed and verified, Rule 2; presented in person, Rule 3; means inquired into by the chief ministerial officer, Rule 1A; day fixed with ten days' notice to the opposite party and the Government Pleader, Rule 6; allowed or refused after evidence, Rule 7; if allowed, numbered and registered and deemed the plaint, and no court fee or process fee, Rule 8.

Seven grounds of rejection, Rule 5: not framed and presented as prescribed; not an indigent person; property disposed of fraudulently or to qualify within two months, subject to the proviso; no cause of action; an agreement giving another an interest in the subject matter; the suit barred by any law on the applicant's own allegations; and an agreement by another to finance the litigation.

Afterwards: fee recoverable by the State Government and a first charge on the subject matter where he succeeds, Rule 10; payable by him where he fails, Rule 11; dispaupering under Rule 9; a pleader assigned under Rule 9A; a refusal bars a fresh application but not an ordinary suit, Rule 15; extended to defence and to appeals, Rules 15A and 17.

Test yourself

1. Who is an indigent person? A person who 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 pay the fee prescribed by law for the plaint in that suit; or, where no such fee is prescribed, one who is not entitled to property worth one thousand rupees, again excluding exempt property and the subject matter of the suit.

2. What must the application contain? The particulars required in a plaint, together with a schedule of any movable or immovable property belonging to the applicant with its estimated value, and it must be signed and verified in the manner prescribed for pleadings. It must ordinarily be presented by the applicant in person.

3. State the grounds on which the Court shall reject the application. Where it is not framed and presented as prescribed by Rules 2 and 3; where the applicant is not an indigent person; where within two months before the application he has disposed of property fraudulently or in order to qualify, unless he would still be indigent even counting it; where his allegations show no cause of action; where he has agreed that another shall have an interest in the subject matter; where his own allegations show the suit would be barred by any law in force; and where another person has agreed with him to finance the litigation.

4. What happens if the indigent person succeeds in the suit? Under Rule 10 the Court calculates the court fees which would have been paid had he not been permitted to sue as an indigent person, and that amount is recoverable by the State Government from any party ordered by the decree to pay it, and is a first charge on the subject matter of the suit.

5. Can permission once granted be withdrawn? Yes. Under Rule 9 the Court may, on the application of the defendant or the Government Pleader and after notice, dispauper the plaintiff where he is guilty of vexatious or improper conduct in the course of the suit, or where his means are such that he ought not to continue to sue as an indigent person, or where he has entered into an agreement under which another has obtained an interest in the subject matter.

6. Is an indigent person entitled to a lawyer? Under Rule 9A, where a person is allowed to sue as an indigent person and is not represented by a pleader, the Court shall, where the circumstances so require, assign a pleader to him.

7. If the application is refused, can he apply again? Not by a fresh application of the same nature in respect of the same right to sue, which Rule 15 bars. He may however institute a suit in the ordinary manner, on payment of the court fees.