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. (O. 35, Expln. II).
Every inquiry into the question whether or not a person is an indigent person shall be one made in the first instance by the chief ministerial officer of the court unless the court otherwise directs and the court may adopt the report of such officer as its own finding or may itself make an inquiry into the question. (O. 33, R. 1, Expln. III).
Procedure in such suits:
A person to be entitled to sue as an indigent person has to obtain permission to sue as such by the court. The application for the permission must contain the particulars required in regard to plaints in suits; and a schedule of the property movable and immovable belonging to the applicant with the estimated value thereof shall be annexed and if should be signed and verified as if it were a plaint.
The application should be presented to the court by the applicant in person unless he is exempted from appearing in court in which case the application may be presented by an authorised agent who can answer all material questions relating to the application.
The applicant or his agent may then /be examined by the court. Where there are more plaintiffs than one it shall be sufficient it the application is presented by one of the plaintiffs. (O. 33, R. 3).
The court shall reject the application for permission to sue an indigent person—
(a) Where it is not properly framed and presented, i.e., full particulars as detailed above are not given or where the application is not presented by the person; or
(b) Where the applicant is not an indigent person; or
(c) Where he has within two months next before the presentation of the application disposed of any property fraudulently in order to be able to apply for permission to sue as an indigent person provided that no application shall be rejected if even after the value of the property disposed of by the applicant is taken into account the applicant would be entitled to sue as an indigent person; or
(d) Where his allegations do not show a cause of action; or
(e) Where he has entered into any agreement with reference to the subject-matter of the proposed suit under which any other person has obtained an interest in such subject-matter; or
(f) Where the allegations made by the applicant in the application show that the suit would be barred by any law for the time being in force; or
(g) Where any other person has entered into an agreement with him to finance the litigation. (O. 33, R. 5).
When the court sees no reason to reject the application on any of the grounds stated above it shall fix a day after at least ten days’ clear notice has been given to the opposite party and the Government pleader for receiving such evidence as the applicant may adduce in proof of his pauperism and of hearing any evidence which may be adduced in disproof thereof. (O. 33, R. 6).
The court examines the witnesses produced by either party, the applicant or his agent makes a record of their evidence and hears arguments and after such hearing may allow or refuse to allow the applicant to sue as a pauper. Where the application is granted it is numbered and registered and is to be deemed the plaint in the suit.
The suit then proceeds in the ordinary manner except that the plaintiff is not liable today any court fee or fees payable for service of process in respect of any petition, appointment of a pleader or other proceeding connected with the suit.
Where the plaintiff succeeds in the suit, the court shall calculate the amount of court fees which would have been paid by the plaintiff if he had been permitted to sue as a pauper and such amount shall be recoverable by the State Government from any party ordered by the decree to pay the same and shall be a first charge on the subject-matter of the suit.
Where the plaintiff fails in the suit or is disappeared, or where the suit is withdrawn or dismissed on failure of the plaintiff to pay court fee or postal charges (if any) chargeable for such service or to present copies of the plaint or concise statement or on plaintiffs not appearing when the suit is called on for hearing the court shall order the plaintiff to pay the court-fees which would have been paid by the plaintiff if he had not been permitted to sue as an indigent person or in forma pauperis. (O. 33, R. 11).
By refusing the application for forma pauperis, the proceedings are not terminated by the trial court. If the plaintiff fails to pay the court fee with the time fixed, the trial court has to make an order for rejection of the plaint. (Mahesh Chandra Bhatt v. State of Uttar Pradesh, judgment dated October 5, 1993, by Hon. Mr. Justice M.L. Bhatt of the Allahabad High Court).
The right to sue in forma pauperis is a personal right and on the death of the original plaintiff his legal representative cannot prosecute the suit unless he either pays the court fee or proves that he himself is a pauper. (Saraswatewwa v. Shivarudrappa Channappa Kinnala, A.I.R. 1981 Karnataka 8).