ORDER XXXIII – Civil Procedure Code 1908

Civil Procedure Code 1908

 

 

ORDER XXXIII. [SUITS BY INDIGENT PERSONS]

 

ORDER XXXIII. 1[SUITS BY INDIGENT PERSONS]

 

1. Subs, by Act No. 104 of 1976 for “Suits by Paupers” (w.e.f. 1-2-1977).

 

1. Suits may be instituted by in by indigent person.

 

Subject to the following provisions, any suit may be instituted by 1[an indigent person]

 

2[Explanation I—A person is an indigent person,—

 

(a) if he 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 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 II—Where the plaintiff sued 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.]

 

1. Subs, by Act No. 104 of 1976 for “pauper” (w.e.f. 1-2-1977).

 

2. Subs, by Act No. 104 of 1976 for the former Explanation (w.e.f. 1-2-1977).

 

HIGH COURT AMENDMENTS

 

Bombay.-In Order XXXIII, in rule 1, for Explanation I, substitute the following Explanation, namely:-

 

“Explanation 1.-A person shall be deemed to be an indigent person if he is not possessed to means exceeding rupees one thousand in value or where he is possessed of means exceeding one thousand rupees in value, the same are not sufficient to enable him to pay fees prescribed by law for the plaint. For the purposes of this Explanation the means which a person is possessed of shall be deemed not to include property exempt from attachment in execution of a decree and the subject-matter of the suit.” (w.e.f. 1-10-1983)

 

Kerala.-In Order XXXIII, in rule 1,-

 

(i) for Explanations, substitute the following Explanations, namely:-

 

Explanation 1.-A person is a pauper when he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit,

 

Explanation 11,-Where the plaintiff sues in a representative capacity the question of pauperism shall be determined with reference to the means possessed by him in such capacity,” (w.e.f. 9-6-1959)

 

[Ed.-This amendment relates to rule 1 prior to its amendment made by the Central Act 104 of 1976, sec. 81 (w.e.f. 1-2-1977).]

 

1[1A. Inquiry into the means of an indigent person

Every inquiry into the question whether or not a person is an indigent person shall be 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.]

 

1. Ins. by Act No. 104 of 1976, sec. 81 (w.e.f. 1-2-1977).

 

2. Contents of application

 

Every application for permission to sue as 1[an indigent person] shall contain the particulars required in regard to plaints in suits: a schedule of any movable or immovable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto; and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings.

 

1. Subs, by Act No. 104 of 1976, sec. 81, for “pauper” (w.e.f. 1-2-1977).

 

3. Presentation of application

 

Notwithstanding anything contained in these rules, the application shall 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 authorized agent who can answer all material questions relating to the application, and who may be examined in the same manner as the party represented by him might have been examined had such party attended in person:

 

1[Provided that, where there are more plaintiffs than one, it shall be sufficient if the application is presented by one of the plaintiffs.]

 

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

 

HIGH COURT AMENDMENTS

 

Allahabad.-In Order XXXIII, in rule 3, after the words “unless he is exempted from appearing in Court”, insert the words “or detained in prison”.

 

[Vide Notification No. 2457/35 (a)-1, dated 8th May, 1937.]

Andhra Pradesh.-Same as in Madras.

 

Karnataka.-Same as in Madras, (w.e.f. 30-3-1967)

 

Kerala.-In Order XXXIII, in rule 3, insert the following Explanation namely:-

“Explanation,-Where there are more applications than one presentation by one shall be deemed to be sufficient compliance with the provisions of the rule.” (w.e.f. 9-6-1959)

 

Madras.-In Order XXXIII, in rule 3, at the end, insert the following words, namely:-

 

“The High Court may by general or special order exempt any person or class of persons from the obligation to present in person an application for permission to sue as a pauper.”

 

4. Examination of applicant

 

(1) Where the application is in proper form and duly presented, the Court may, if it thinks fit, examine the applicant, or his agent when the applicant is allowed to appear by agent, regarding the merits of the claim and the property of the applicant.

 

(2) If presented agent, Court may order applicant to be examined by commission—Where the application is presented by an agent, the Court may, if it thinks fit, order that the applicant be examined by a commission in the manner in which the examination of an absent witness may be taken.

 

5. Rejection of application

 

The Court shall reject an application for permission to sue as 1[an indigent person]—

 

(a) where it is not framed and presented in the manner prescribed by rules 2 and 3, or

 

(b) where the applicant is not 1[an indigent person], or

 

(c) where he has, within two months next before the presentation of the application disposed of any property fraudulently or in order to be able to apply for permission to sue as 1[an indigent person]:

 

2[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,2 [or]

 

2[(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.]

 

1. Subs. by Act No. 104 of 1976, sec. 81, for “pauper” (w.e.f. 1-2-1977).

 

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

 

HIGH COURT AMENDMENTS

 

Allahabad.-In Order XXXIII, in rule 5,-

 

(a) in clause (a), between the figure “3” and the word “, or” insert the words “and the applicant on being required by the Court to make any amendment within a time to be fixed by the Court, fails to do so”.

 

(b) at the end of the rule, insert the following Explanation, namely:-

 

“Explanation.-An application shall not be rejected under clause (d) merely on the ground that the proposed suit appears to be barred by any law.” (w.e.f. 15-4-1933)

 

Andhra Pradesh.-In Order XXXIII, in rule 5, for clause (d), substitute the following clause, namely:-

“(d) where the allegations in the application show that suit is barred by law or do not show a cause of action, or”.

 

Karnataka.-In Order XXXIII, in rule 5, in clause (a), between the figure “3” and the word “, or” add the words “and the applicant when required by the Court to rectify the defect within a time to be fixed by the Court fails to do so, or”, (w.e.f. 30-3-1967}

 

Kerala.-In Order XXXIII, in rule 5, after clause {d}, insert the following clause, namely:-

 

“(d1) Where the suit appears to be barred by any law, or”, (w.e.f. 9-6-1959)

 

Madras.-In Order XXXIII, in rule 5, for clause (d), substitute the following clauses, namely:-

 

“(d) where the allegations do not show a cause of action, or

(d1) where the suit appears to barred by any law, or” (w.e.f. 22-10-1940)

 

6. Notice of day for receiving evidence of applicant’s indigency

 

Where the Court sees no reason to reject the application on any of the grounds stated in rule 5, it shall fix a day (of which at least ten day’s clear notice shall be given to the opposite party and the Government pleader) for receiving such evidence as the application may adduce in proof of his indigency, and for hearing any evidence which may be adduced in disproof thereof.

 

HIGH COURT AMENDMENTS

 

Andhra Pradesh.-In Order XXXIII, for rule 6, substitute the following rule, namely:- “6. Where the Court sees no reason to reject the application on the grounds stated in clauses (a) and {d) of rule 5, it shall fix a day (of which at least ten days’ clear notice shall be given to the opposite party and the Government Pleader) for receiving evidence from the parties including the Government Pleader w
ith regard to the matters specified in clauses (b), (c) and (e) of rule (5).” (w.e.f. 4-3-1975)

 

Karnataka, Kerala and Madras:-In Order XXXIII, for rule 6, substitute the following rule, namely:-

 

“6. Notice of day for inquiring into the applicants right to sue as pauper.-Where the Court sees no reason to reject the application on any of the grounds stated in rule 5, it shall nevertheless fix a day of which at least ten days’ clear notice shall be given to the opposite party and to the G.P. for receiving such evidence as the applicant may adduce to prove that the application is not subject to any of the prohibitions in rule 5 and for hearing any evidence which may be adduced to the contrary.” (w.e.f. 9-6-1959).

 

7. Procedure at hearing

 

(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.

 

1[(1A) The examination of the witnesses under sub-rule (1) shall be confined to the matters specified in clause (b), clause (c) and clause (e) of rule 5 but the examination of the applicant or his agent may relate to any of the matters specified 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 2[under rule 6 or under this rule], the applicant is or is not subject to any of the prohibitions specified in rule 5.

 

(3) The Court shall then either allow or refuse to allow the applicant to sue as 3[an indigent person].

 

1. Subs. by Act No. 104 of 1976 for “pauper” (w.e.f. 1-2-1977).

 

2. Subs. by Act No. 104 of 1976 for certain words (w.e.f. 1-2-1977).

 

3. Subs. by Act No. 104 of 1976 for “pauper” (w.e.f. 1-2-1977).

 

HIGH COURT AMENDMENTS

 

Andhra Pradesh.-Same as in Madras.

 

Karnataka,-Same as in Madras, (w.e.f. 30-3-1967)

 

Kerala.-In Order XXXIII, in rule 7, in sub-rule (3), at the end, substitute a comma for the full stop and insert the words “or direct that the application be filed as a plaint on the applicant paying the requisite Court-fee within thirty days or such reasonable time as the Court may fix.” (w.e.f. 9-6-1959)

 

Madras.-In Order XXXIII, in rule 7, after sub-rule (3), insert the following as sub-rule, namely:-

 

“(4) Where the application is for leave to sue in a representative capacity under Explanation (iii) to rule 1, or under sections 91, 92 or under Order 1, rule 8 the Court may, if it thinks fit for reasons to be recorded in writing, direct that the plaintiff shall give security for the payment of Court-fee.”

 

8. Procedure if application admitted

 

Where the application is granted, it shall be numbered and registered, and shall be deemed the plaint in the suit, and the suit proceed in all other respects as a suit instituted in the ordinary manner, except that the plaintiff shall not be liable to pay any court-fee 1[or fees payable for service of process] in respect of any petition, appointment of a pleader or other proceeding connected with the suit.

 

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

 

9. Withdrawal of permission to sue
as an indigent person

 

The Court may, on the application of the defendant, or of the Government pleader, of which seven days’ clear notice in writing has been given to the plaintiff, order that the permission granted to the plaintiff to sue as an indigent person be withdrawn—

 

(a) if he is guilty of vexatious or improper conduct in the course of the suit;

(b) if it appears that his means are such that he ought not to continue to sue as 1[an indigent person]; or

 

(c) if he has entered into any agreement with reference to the subject-matter of the suit under which any other person has obtained an interest in such subject-matter.

 

1. Subs. by Act No. 104 of 1976 for “pauper” (w.e.f. 1-2-1977).

 

HIGH COURT AMENDMENT

 

Orissa.-In Order XXVIII, in rule 9,-

(i) in clause (c), at the end, insert the word “or”;

 

(ii) after clause (c), inert the following clause, namely:-

 

“(d) if he has entered into an arrangement with any other person to finance the litigation.”

 

1[9A. Court to assign a pleader to an unrepresented indigent person

 

(1) Where a person, who is permitted to sue as an indigent person, is not represented by a pleader, the Court may, if the circumstances of the case so require, assign a pleader to him.

 

(2) The High Court may, with the previous approval of the State Government, make rules providing for—

 

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

 

(b) the facilities to be provided to such pleaders by the Court;

 

(c) any other matter which is required to be or may be provided by the rules for giving effect to the provisions of sub-rule (1).]

 

1. Ins. by Act No. 104 of 1976, sec. 81 (w.e.f. 1-2-1977).

 

HIGH COURT AMENDMENTS

 

Bombay.-In exercise of the powers conferred by sub-rule (2) of rule 9A of Order XXXIII, of the Code of Civil Procedure, 1908, the High Court of Judicature at Bombay with the previous approval of the Government of Maharashtra, makes the following rules for assignment of a pleader to an unrepresented indigent:-

 

1. Short title and commencement.-These rules may be called Assignment of a Pleader to an Unrepresented Indigent Person (Maharashtra) Rules, 1980.

 

2. Definitions.-In these rules, unless the context otherwise requires;

 

(a) ‘High Court’ means the High Court of Judicature at Bombay;

 

(b) ‘Pleader assigned’ means a Pleader assigned under these rules to represent an indigent person;

 

(c) ‘Panel’ means list of Pleaders prepared and maintained under these rules;

 

(d) ‘Constituting Authority’ means the authority empowered under these rules to constituting the panel.

 

3. The authority referred to in column No. 1 below shall continue panel of pleaders willing to appear for an unrepresented indigent person in civil proceedings in Courts referred to in column No. 2 against them:

 

Name of Constituting Authority Name of the Court for which panel to be constituted
1 Prothonotary and Senior Master High Court, Original Side, Bombay. High Court, Original Side, Bombay.
2 Registrar, High Court, Appellate Side, Bombay. High Court, Appellate Side, Bombay.
3 Special Officer, Nagpur. High Court Bench at Nagpur.
4 District Judge. Courts at District Headquarters.
5 Principal Judge, Bombay City Civil Court. Bombay City, Civil Court.
6 Chief Judge, Small Causes Court senior most Judge at the Station. Small Causes Court, Bombay for Courts outside District Headquarters.

 

Provided that the panel constituted by the senior most Judge outside the District Headquarters shall be subject to the previous approval of the District Judge.

 

4. The Constituting Authority shall prepare the panel in consultation with the President of the Bar Association, and if there be no Bar Association, in consultation with the pleaders practising in the Court for which panel is constituted.

 

5. Eligibility.-A pleader with a standing of not less than three years at the Bar shall be eligible for being taken on the panel.

 

6. Removal.-The Constituting Authority may strike off the name of a pleader from the panel when the pleader ceases to practice due to any reason or when he intimates his unwillingness in writing under rule 15 or when the Constituting Authority finds that the pleader after accepting a engagement neglects or refuses to discharge his duties. Before striking off a name for neglect or refusing to discharge duties properly, the Constituting Authority shall give an opportunity to the pleader to be heard.

 

7. Revision of Panel.-The Constituting Authority may add to the panel names of pleaders after following the procedure referred to in rule 4 as and when it deems necessary to do so.

 

8. When a pleader is to be assigned to an unrepresented indigent person such assignment shall be made from out of the panel by the Court concerned.

 

9. The pleader assigned shall not refuse assistance to the indigent person unless the Court is satisfied that he has good reasons for so refusing.

 

10. The Court may for sufficient reasons permit the pleader assigned, to withdraw from the proceeding and assign another to represent the indigent person. On such permission for withdrawal being granted, the pleader original assigned, shall hand over the papers relating to the proceeding to the pleader assigned subsequently.

 

11. The Court or Constituting Authority at any time if deemed proper may call for a report from the pleader assigned, regarding the progress of the suit or proceedings entrusted to him.

 

12. The pleader assigned shall take care that no notice is served, summons issued or petition presented without good cause in prosecution of the indigent person’s cause.

 

13. Whilst a person sues or defends as an indigent person, the pleader assigned shall not take or agree to take or seek to obtain from him or any other person any fee, pro/it or reward for the conduct of his useness in the Court:

 

Provided that notwithstanding anything herein contained, the Court of a Judge shall have power to award costs against the adverse party or out of the property recovered in the suit and to direct payment thereof to the pleader assigned.

 

14. The pleader assigned the case under these rules shall be paid the fees in various Courts at the ra
tes mentioned below:

 

(a) In all legal proceedings in the High Court at Bombay and Nagpur and in City Civil Court in Bombay. Rs. 50 per day subject to maximum of Rs. 150 in any one case.
(b) In all proceedings in Courts at District Headquarters and in Small Causes Courts in BombayPuna and Nagpur. Rs. 25 per day subject to a maximum of Rs. 100 in any one case.
(c) In all proceedings in Courts in Taluka. Rs. 15 per day subject to a maximum of Rs. 50 in any one case.

 

The expenditure on this account shall be met from budget grants sanctioned under budget head 214-Administration of Justice Legal Advisers and Counsel-M (i) and M (ii).

 

15. Intimation of unwillingness to continue on panel.-The pleader taken on the panel may if he so desire intimate in writing his unwillingness to continue to be on the panel and on receipt of such intimation, his name shall be deleted from the panel provided that Constituting Authority may request the pleader assigned to continue to represent the indigent person in the matters assigned. (By order of the Hon’ble the Chief Justice and Judges)

 

[Vide Mah. Gazette Pt. IV-Ka, dated 18-9-1980.]

 

Calcutta.-In exercise of the powers conferred by article 227 (2) (b) of the Constitution of India and by sub-rule (2) of rule 9A of Order XXXIII of the Code of Civil Procedure the High Court of Calcutta, with the approval of the Government of West Bengal has framed the following rules which are published for general information:

 

Rules under Order XXXIII, rule 9A (2) of the Code of Civil Procedure:

 

1. (a) For the purpose of selection of pleaders to be assigned under sub-rule (1) of rule 9A of Order XXXIII of the Code the District Judge in consultation with the senior most judicial officers of the outlying stations shall prepare and maintain a panel of pleaders for (a) the district headquarters, and (b) the outlying stations.

 

The District Judge in his discretion may also consult the President of the Civil Bar Association.

 

(b) The panel to be proposed under sub-rule (1) shall be in two parts. The first part of the panel shall contain the names of suitable advocates who offer themselves to appear for the undefended indigent persons without charging any fee and part two thereof shall have the names of such advocates as are willing to appear for such persons at State expense.

 

(c) An advocate who has been in practice for not less than five years in the Civil Courts and whose name has been entered on the rolls of Bar Counsel of West Bengal shall be eligible for being brought on the panel of pleaders.

 

(d) The District Judge shall revise the panel every two years in consultation with the senior most judicial officers of the outlying stations.

 

(e) The District Judge shall circulate the panel to all the Civil Courts in the District.

 

(f) No assignment shall be made to any pleader whose name does not appear in the panel.

 

2. In any case where it is decided to assign a pleader under Order XXXIII of the Code, every Court trying a cause (hereinafter called “the Court”) shall endeavour in the first instance to select a suitable advocate from that part of the panel which comprises the name of advocates willing to appear for undefended indigent persons without charging any fee. In case where it is not possible to assign a pleader, free of charges, the Court may assign a pleader at State expense.

 

3. The Court shall
have power to terminate the assignment of a panel pleader for sufficient reasons to be recorded in writing and to make fresh assignment of another panel pleader in his place:

 

Provided that a pleader engaged by the Court shall retire from the trial if and when the indigent person engages lawyer at his own expense.

 

4.(1) A common register of the panel pleaders to be assigned for undefended indigent persons at State expense shall be maintained at each station showing: (a) name of the pleader; {b) date of assignment; (c) Court by which assigned; (d) No. of the case; (e) No. of days of work; (f) fees paid.

 

(2) A statement containing the particulars to be entered in the register shall be sent to the District Judge by each Court after conclusion of every trial in which a panel pleader is assigned at State expense.

 

(3) Every Court at a station shall, before selecting a panel pleader call for and consult the common register in order to ensure an even distribution of assignments amongst such panel pleaders.

 

5. The ordinary fees payable to a panel pleader assigned at State expense shall not be less than Rs. 50 and not more than Rs. 300 for the entire case at the discretion of the Presiding Officer of the Court.

 

6. Any vacancy in the panel due to death, incapacity, resignation or any other cause may be filled up by the District Judge in the manner provided in rule 1.

 

7. All panel pleaders engaged at State expense shall maintain in duplicate a monthly Register of Work in the form prescribed in the Schedule in loose sheets, one sheet being used for each separate case in which the pleader appears and the

 

initial of the Presiding Officer shall be taken daily in the appropriate column. After the disposal of each case in which he appears he shall obtain the signature of the Presiding Officer to the certificate of correctness on the sheet showing the work done in his Court. The duplicate of such sheet shall be preserved in the office of the District Judge for two years from the date of sanction of the bill.

 

8. As early possible after the delivery of the judgment of the cases the panel pleader shall submit to the Presiding Officer a bill in the prescribed form for the work done supported by the sheet of the Register of Work containing the certificate of the Presiding Officer.

 

9. The bill shall be checked with the Register of Work by the Chief Ministerial Officer, who shall certify its correctness, endorse the relevant sheet as checked; with his initial and obtain the signature of the Presiding Officer. The bill and Register of Work shall then be submitted to the District Judge for passing and after satisfying ,r himself as to the correctness thereof, he shall pass the bill for payment.

 

10. The District Judge shall be Controlling Officer for payment and audit of all fees payable to panel pleaders engaged at State expense in the Civil Courts in his District.

 

SCHEDULE

FORM I
(Rule 7)
Register of Work

 

Date No. and nature of case Actual daily duration of hearing Full or half day Serial No. of con­secutive days of hearing Initial of Presiding Officer
(1) (2) (3) (4) (5) (6)

 

 

         

 

Total number of days:
Cert
ified correct
Signature of Presiding Officer
Date:

 

FORM II
(Rule 8)

 

Bill. of fee due to……….. in…. …….No………. ….of the Court of……………

 

Date Register of Works No. Full or half day Amount of fee charged Remarks
(1) (2) (3) (4) (5)

 

 

 

       

Total ………….Rupees………….Paise………….only

 

Verified with the Register
of Work as correct
Signature of Chief Ministerial

Passed for Rupees…………. (in words and figures)

Officer with date
Signature of Presiding Officer with date

District Judge

 

(Appellate Side : 15425, dated 22nd November, 1979)

 

Haryana.-The following rules have been framed for regulating the appointment of pleaders to represent indigent persons in civil suits:-

 

LEGAL AID TO INDIGENT PERSONS (PUNJAB, HARYANA AND
CHANDIGARH ADMINISTRATION) RULES, 1981

 

PART I

 

1. Short title and commencement-(1) The rules may be called the Legal Aid to the Indigent Persons {Punjab, Haryana and Chandigarh Administration) Rules, 1981

 

(2) These rules shall come into force from the date of their publication in the Official Gazette.

 

2. Definitions.-In these rules, unless the context otherwise requires,-

(a) ‘High Court’ means the High Court of Punjab and Haryana at Chandigarh;

 

(b) ‘Pleader’ includes any person whose name is entered on the rolls of the Bar Council of Punjab and Haryana maintained under the Advocates Act, 1961 and the rules framed thereunder;

 

(c) ‘List’ means the list of advocates prepared and maintained by District Judge separately for cash sub-division of the District under these rules, willing to appear for the undefined indigent persons in civil suits at State expense or free of charge.

 

(d) ‘Code’ means the Code of Civil Procedure, 1908, as amended from time to time.

 

PART II

 

3. Assignment of advocates for indigent persons.-(1) Where a person who is permitted by a Court to sue as an indigent person under sub-rule (3) of Rule 7 of Order XXXIII of the Code, is not presented by a pleader, the Presiding Officer of the Court shall, if the circumstances of the case so required, assign a pleader to him from the list.

 

(2) In any case where it is decided to assign a pleader under sub-rule (1), the Court shall endeavour in the first instance to select a suitable advocate from that part of the list which comprises the names of advocates, if any, willing to appear for undefended indigent persons without charging any fee.

 

PART III

 

4. Preparation of list.-(1) The District Judge shall prepare and maintain a list of 5 to 15 suitable advocates willing to appear for the undefended indigent persons at the state expense or without charging any fee separately for each sub-division of the district in relation to which he exercises jurisdiction, after co
nsultation with the senior most Judicial Officer for the time being posted at the headquarters of each such sub-division and the president of the Bar Association of that place.

 

(2) The list to be prepared and maintained under sub-rule (1) shall be in two parts. The first part of the list shall contain the names of suitable advocates, who offer themselves to appear for the undefended indigent persons without charging any fee and part two thereof shall have the names of such advocates as are willing to appear for such persons at State expense and are selected for the purpose.

 

(3) An advocate with a standing of not less than five years at the Bar shall be eligible for being brought on the list under sub-rule (1). The District Judge shall so far as may be, persuade competent senior lawyers to enlist themselves for representing indigent persons without charging any fee.

(4) The District Judge shall revise the list in the month of December in each year.

 

(5) The District Judge, shall in the month of January in each year, communicate the names of the advocates on the list maintained for each sub-division of his District (s) to the High Court in the following form:- “j-

 

(1) Name of the advocate

 

(2) Date of birth

 

(3) Qualification: University degrees Distinctions earned in Law (if any)

 

(4) Date of enrolment at the Bar.

 

(5) Place of practice.

 

(6) Length of actual practice.

 

(7) General reputation and standing at the Bar.

 

(8) The Registrar shall cause the names on the list for each district to be entered separately in a Register.

 

(9) The District Judge or the High Court may strike off the name of any advocate from the list without assigning any reason.

 

PART IV

 

5. Facilities to advocates selected from the list.-

 

(1) Where an advocate is assigned to represent, indigent persons at State expense or otherwise, the Court shall allow a period of at least seven days to the advocate to prepare the brief and shall adjourn the hearing of the case for that purpose.

 

(2) The Court shall allow, free of cost, inspection of the records of the case by the advocate so assigned.

 

PART V

 

6. Scale of fees.-(1) The ordinary fee payable to an advocate assigned to represent an indigent person at State expense, shall not be less than Rs. 50 and not more than Rs. 300 for the entire case, at the discretion of the presiding officer of the Court.

 

(2) In special cases the District Judge may add any reasonable amount not exceeding Rs. 100 to the ordinary fee allowed by sub-rule (1) with the prior approval of the High Court.

 

(3) No fee shall be payable for the day on which the case is adjourned without any proceeding being taken by the Court, except at the first hearing of the case: Providing that if an advocate assigned to represent an indigent person is required to retire at any time after the engagement of an advocate by the indigent person at his own expense, he shall be entitled to get a fee of Rs. 50 as compensation.

 

7. Maintenance of Diary by Advocates engaged at State expense.-An advocate engaged to represent an indigent person in any Court subordinate to the High Court at State expense shall, at the conclusion of each day of hearing in the case, prepare and submit for counter signatures by the Presiding Officer of the Court a diary cont
aining following details fully set out:-

 

 

Date The name and title of the case Name of the party represented Duration of hearing Work done Signature of the Presiding Officer Remarks

 

 

           

 

8. Payment of fees.-(1) The District Judge shall be the controlling Officer for the payment and audit of all fees due to advocates engaged to represent indigent persons in Courts subordinate to the High Court.

 

(2) The advocates listed shall submit their bills to the District Judge within one month of the disposal °f me case by the Court.

 

[Vide Notification No, 70/p3/CA./5/1908-R9A/Order/XXXIII, dated 7th May, 1981, published in Haryana Gazette, L.S. pp. 509-511, dated 19th May, 1981.]

 

Himachal Pradesh.-The following rules have been made for regulating the appointment of, Pleaders to represent indigent persons in civil suits, namely:-

 

LEGAL AID TO INDIGENT PERSONS (HIMACHAL PRADESH HIGH COURT) RULES, 1979.

 

PART I

 

1. Short title and commencement.-(1) These rules may be called the Legal Aid to the Indigent Persons (Himachal Pradesh High Court) Rules, 1979.

 

(2) These rules shall come into force with immediate effect.

 

2. Definitions.-In these rules, unless the context otherwise requires.-

 

(a) “High Court” means the High Court of Himachal Pradesh at Simla;

 

(b) “Pleader” includes any person whose name is entered on the rolls of the Bar Council of Himachal Pradesh maintained under the Advocates Act, 1961, and the Rules framed thereunder;

 

(c) “List” means the list of advocates prepared and maintained by the District Judge separately for each Sub-Division of the District under these rules, willing to appear for the undefended indigent persons in civil suits at State expense or free of charges;

 

(d) “Code” means the Code of Civil Procedure, 1908, as amended from time to time.

 

PART II

 

3. Assignment of advocate for indigent persons.-

 

(1) Where a person who is permitted by a Court to sue or a person who desires to plead a set off or counter claim in a suit filed against him as an indigent person under sub-rule (3) of Rule 7 and Rule 17, respectively, of Order XXXIII of the Code, is not represented by a pleader the Presiding Officer of the Court shall if the circumstances of the case so required, assign a pleader to him from the list

 

(2) In any case where it is decided to assign a pleader under sub-rule (1), the Court shall endeavour in the first instance to select a suitable advocate from the first part of the list mentioned in sub-rule (4) of Part III, failing which the persons from the Part II of the list will be appointed.

 

PART III

4. Preparation of list.-

 

(1) The District Judge shall prepare and maintain a list of 3 to 10 suitable advocates willing to appear for the undefended indigent persons at the State expense or without charging any fee separately for each Sub-Division of the District in relation to which he exercis
es jurisdiction, after consultation with the senior most judicial officer for the time being posted at the headquarters of each such sub-division and the President of the Bar Association of that place.

 

(2) The list to be prepared and maintained under sub-rule (1) shall be in two parts. The first part of the list shall contain the names of suitable advocates who offer themselves to appear for the undefended indigent person (s) without charging any fee and part two thereof shall have the names of such advocates as are willing to appear for such persons at State expense and are selected for the purpose.

 

(3) An advocate with a standing of not less than three years at Bar shall be eligible for being brought on the list under sub-rule (1). The District Judge shall, so far as may be, persuade competent senior lawyers to enlist themselves for representing indigent persons without charging any fee.

 

(4) The District Judge shall revise the list in the month of December in each year.

 

(5) The District Judge shall in the month of January in each year, communicate the names of the advocates on the list maintained for each Sub-Division of his District(s) to the High Court in the following form:-

 

(1) Name of the Advocate.

 

(2) Date of birth.

 

(3) Qualification: University Degrees: Distinctions earned in law (if any)

 

(4) Date of enrolment at the Bar.

 

(5) Length of actual practice.

 

(6) The Registrar shall cause the names on the list for each district to be entered separately in a Register.

 

(7) The District Judge or the High Court may strike off the name of any advocate from the list without assigning any reason..

 

PART IV

 

5. Facilities to advocates selected from the list.-(1) Where an advocate is assigned to represent an indigent person at State expense or otherwise, the Court shall allow a period of at least sev.en days to the advocates to prepare the brief and shall adjourn the hearing of the case for that purpose.

 

(2) The Court shall allow free of costs inspection of the records of the case by the advocate so assigned,

 

(3) The Court, where the deposition of witness is recorded by a stenographer during trial shall, supply copies of such depositions to the advocate so appointed free of cost.

 

PART V

 

6. Scale of fees.-The ordinary fee payable to an advocate assigned to represent an indigent person at State expense, shall not be less than Rs. 50 and not more than Rs. 300 for the entire case, at the discretion of the Presiding Officer of the Court.

 

(2) In special cases, the District Judge may add any reasonable amount to the ordinary fee allowed by sub-rule (1) with the prior concurrence of the High Court.

 

(3) If an advocate assigned to represent an indigent person is required to retire at any time after the engagement of an advocate by the indigent person at his own expense, he shall be entitled to get the minimum of the amount of fee fixed under sub-rule (1) above as compensation, or such other amount as the Presiding Officer in his discretion may allow subject to maximum fixed in sub-rule (1).

 

7. Maintenance of diary by advocates engaged at State expense.-An advocate engaged to represent an indigent person in any court subordinate to the High Court at State expense shall, at the conclusion of each day of hearing in the case, prepare and submit for counter-signatures by t
he Presiding Officer of the Court a diary containing following details fully set out:–

 

Date The name and title of the case Name of the party Duration of hearing Work done Signature of the Presiding Officer Remarks

(1)

(2) (3) (4) (5) (6) (7)

 

 

 

           

 

 

8. Payment of fees.-(1) The District Judge shall be the controlling officer for the payment and audit oft all fees due to advocates engaged to represent indigent persons in courts subordinate to the High Court.

 

The fee shall be debitable to the major Head “214-Administration of Justice Civil and Session Courts payment of Professional and Special Services.”

 

(2) The advocates shall submit their bills to the District Judge within one month of the disposal of the case by the Court or such other extended time the District Judge may allow.

 

PART VI

 

9. Recovery of fee.-(1) Where an indigent person succeeds in the suit or counter-claim filed by him and is awarded costs, the Court shall direct that the pleader’s fee paid to advocate under Rule 3 of the sub-rule (1) of Part II shall be included in the memo of costs appended to the decree-sheet and that amount shall be ordered to be recovered from the said person and the said amount shall be the first charge on the subject-matter of the decree.

 

(2) The amount of fee recovered shall be deposited in the government account under the proper head of ‘Receipts’.

 

(3) The District Judge shall submit to the High Court quarterly statement regarding the amount so recovered under Rule 9 (1) with particulars of the case.

 

[vide Notification No. HHC Admn. 22(6)/78, dated 6th November, 1979, Published in Himachal Pradesh Gazette, Pt. III, dated 15th December, 1979.]

 

10. Costs where 1[indigent person] succeeds

 

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 not been permitted to sue as 1[an indigent person]; 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.

 

1. Subs. by Act No. 104 of 1976, sec. 81 for “pauper” (w.e.f. 1-2-1977).

 

11. Procedure where1[indigent person] fails

 

Where the plaintiff fails in the suit or the permission granted to him to sue as an 1[indigent person] has been withdrawn, or where the suit is withdrawn or dismissed,— (a) because the summons for the defendant to appear and answer has not been served upon him in consequence of the failure of the plaintiff to pay the court-fee or postal charges (if any) chargeable for such service 2[or to present copies of the plaint or concise statement], or (b) because the plaintiff does not appear when the suit is called on for hearing, the Court shall order the plaintiff, or any person added as a co-plaintiff to the suit, to pay the court-fees which would have been paid by the plaintiff if he had not been permitte
d to sue as 2[an indigent person].

 

1. Subs. by Act No. 104 of 1976 for “pauper” (w.e.f. 1-2-1977).

 

2. Ins. by Act No. 104 of 1976, sec. 81 (w.e.f. 1- 2-1977).

 

HIGH COURT AMENDMENTS

 

Andhra Pradesh.-In Order XXXIII, for rule 11,- (i) substitute as in Madras by renumbering it as sub-rule (1) thereof; (ii) after sub-rule (1) as so renumbered, insert the following sub-rule, namely:- “(2) Where the suit has been adjusted wholly or in part by any lawful agreement or compromise or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, but no provision is made for the payment of Court-fee, the Court may direct either of or both the parties to pay the Court-fee or any proportionate part thereof as it thinks fit.” (w.e.f. 14-9-1961).

 

Karnataka.-In Order XXXIII, for rule 11, substitute the following rule, namely:- “11. (1) Where the plaintiff fials in the suit or is diapaupered or where the suit is withdrawn or where part of the claim is abandoned or the suit is dismissed because the summons for the defendant to appear and answer has not been served upon him in consequence of the plaintiff’s failure to pay the requisite charges for service or the suit is so dismissed because the plaintiff does not appear when the suit is called on for hearing, the Court shall order the plaintiff or any person added as a co-plaintiff to the suit to pay the Court-fee and in case of abandonment of part of the claim the proportionate court-fee which would have been payable by the plaintiff if he had not been premitted to sue as pauper.

 

(2) In cases where the plaintiff is dispaupered the Court may, instead of proceeding under sub-rule (1) order the plaintiff to pay the requisite court-fee within a time to be fixed by it and in default dismiss the suit and make and order for the payment of court-fee as in sub-rule (1).

 

(3) Where the Court finds that the suit has been instituted unreasonably or improperly by a next friend on behalf of a minor plaintiff on a cause of action which accrued during the minority of such plaintiff the Court may order the next frined to personally pay the court-fee.” {w.e.f. 30-3-1967)

 

Kerala.-Same as in Madras.

 

[Vide Notification No. Bl-3312/58, dated 7th April, 1959].

 

Madras.-In Order XXXIII, for rule 11, substitute the following rule, namely:

 

11. Procedure where pauper fails.-

Where the plaintiff fails in the suit or is dispaupered or where the suit is withdrawn or where part of the claim is abandoned or where the suit is dismissed-

 

(a) because the summons for the defendant to appear and answer has not been served upon him in consequence of the failure of the plaintiff to pay the Court-fees or postal charge (if any) chargeable for such service, or

 

(b) because the plaintiff does not appear when the suit is called on for hearing, the Court shall order the plaintiff, or any person added as a co-plaintiff to the suit, to pay the Court-fee and in the case of abandonment of part of the claim the proportionate Court-fee, which would have been payable by the plaintiff if he had not been permitted to sue as a pauper. In case where the plaintiff is dispaupered the Court may, instead of proceeding under the previous paragraph order the plaintiff to pay the requisite Court-fee within a time to be fixed by it and to default dismiss the suit and make an order for the paymen
t of Court-fee as in the previous paragraph.

 

Where the Court finds that the suit has been instituted unreasonably or improperly by a next friend on behalf of a minor plaintiff on a cause of action which accrued during the minority of such plaintiff, the Court may order the next friend to personally pay the Court-fee.”

 

11A. Procedure where indigent person’s suit abates

 

Where the suit abates by reason of the death of the plaintiff or of any person added as a co-plaintiff, the Court shall order that amount of court-fees which would have been paid by the plaintiff if he had not been permitted to sue as 1[an indigent person] shall be recoverable by the State Government from the estate of the deceased plaintiff.

 

1. Subs. by Act No. 104 of 1976 for “pauper” (w.e.f. 1-2-1977).

 

12. State Government may apply for payment of court-fees.

 

The S tate Government shall have the right at any time to apply to the Court to make an order for the payment of court-fees under rule 10, rule 11 or rule 11A.

 

HIGH COURT AMENDMENTS

 

Kerala.-Same as in Madras, {w.e.f. 9-6-1959)

 

Madras.-In Order XXXIII,- (a) renumber rule 12 as sub-rule (1) thereof; and (b) after sub-rule (1) as so renumbered, insert the following sub-rule, namely:- “(2) Notice to State Government before payment.-No order for payment out of money standing to the credit of any suit instituted in forma pauperism shall be made on the application of any party except after notice duly to the Government Pleader on behalf of the Government” (w.e.f. 10-8-1955)

 

13. State Government to be deemed a party

 

All matters arising between the State Government and any party to the suit under rule 10, rule 11 rule 11A or rule 12 shall be deemed to be questions arising between the parties to the suit within the meaning of section 47.

 

HIGH COURT AMENDMENT

 

Andhra Pradesh.-In Order XXXIII, after rule 13, insert the following rule, namely:- “13A. If any money is outstanding to the credit of a suit or appeal or other proceeding instituted, preferred or taken in forma pauperism no order for payment out of such money shall be made on application of any party except after due notice to the State Government”,(w.e.f. 15-2-1956)

 

1[14. Recovery of amount of court-fees.

 

Where an order is made under rule 10, rule 11 or rule 11 A, the court shall forthwith cause a copy of the decree or order to be forwarded to the Collector who may, without prejudice to any other mode of recovery, recover the amount of court-fees specified therein from the person or property liable for the payment as if it were an arrear of land revenue.

 

1. Subs. by Act 24 of 1942, sec. 2 for rule 14.

 

15. Refusal to allow applicant to sue as indigent person to bar subsequent application of like nature

 

An order refusing to allow the applicant top sue as 1[an indigent person] 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 be at liberty to institute a suit in the ordinary manner in respect of such right;

 

2[Provided that the plaint shall be rejected if he does
not pay, either at the time of the institution of the suit or within such time thereafter as the Court may allow,] the costs (if any) incurred by the State Government and by the opposite party in opposing his application for leave to sue as 3[an indigent person.]

 

1. Subs. by Act No. 104 of 1976 for “pauper” (w.e.f. 1-2-1977).

 

2. Subs. by Act No. 104 of 1976 for certain words (w.e.f. 1-2- 1977).

 

3. Subs. by Act No. 104 of 1976 for “pauper” (w.e.f. 1-2-1977).

 

HIGH COURT AMENDMENT

 

Rajasthan.-In Order XXXIII,- (a) renumber rule 15 as sub-rule (1) thereof; and (b) after sub-rule (1) as so renumbered, insert the following sub-rule, namely:- “(2) Nothing in sub-rule (1) shall prevent the Court while rejecting an application under rule 5 or refusing an application under rule 7 from granting time to the applicant to pay the requisite Court-fee within a time to be fixed by the Court; and upon such payment the suit shall be deemed to have been instituted on the date on which the application was presented.”

(w.e.f. 14-8-1954)

 

1[15A. Grant of time for payment of court-fee.

 

Nothing contained in rule 5, rule 7 or rule 15 shall prevent a Court, while rejecting an application under rule 5 or refusing an application under rule 7, from granting time to the applicant to pay the requisite court-fee within such time as may be fixed by the Court or extended by it from time to time; and upon such payment and on payment of the costs referred to in 2[****] rule 15 with in that time, the suit shall be deemed to have been instituted on the date on which the application for permission to sue as an indigent person was presented.]

 

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

 

2. Omitted by Act No.19 of 1988.

 

16. Costs

 

The costs of an application for permission to sue as 1[an indigent person] and of an inquiry into indigency shall be costs in the suit.

 

1. Subs, by Act No. 104 of 1976 for “pauper” (w.e.f. 1-2-1977).

 

HIGH COURT AMENDMENT

 

Andhra Pradesh.-In Order XXXIII, after rule 16, insert the following rules, namely:-

 

17. In every case, where a person is suing as a pauper, the counsel appearing for him shall file along with his vakalatnama a certificate stating the fee, if any, he has actually received and/or as stipulated to receive from the pauper or on his behalf in the suit and if, upon such a certificate the Court is satisfied that his means are such that he ought not to continue to sue as a pauper or that he is being financed by a third party, it shall be open to the Court to dispauper such a person.

 

18. Where the pauper is unable to engage a counsel, the Court may assign an advocate or pleader to assist him.

 

19. It shall be the duty of the Advocate or Pleader who may be assigned by the Court to assist a pauper to see that notices are served, summonses issued or petitions presented only on good and sufficient grounds and he shall also report to the Court every six months the progress of the suit.

 

20. After a person has been granted leave to sue as a pauper, no person shall take, except in pursuance of an agreement as certified to Court under rule 17 or agree to take or seek to obtain from him, any fee, pr
ofit or reward for the conduct of his business in the Court: Provided that, notwithstanding anything herein contained, the Court shall have power to award costs against the adverse party or out of the property recovered in the suit and to direct the payment thereof to the Advocate or Pleader representing the pauper.

 

21. The word ‘suit’ in these rules includes ‘appeal’.”

 

[Vide Notification No. ROC No. 1186/56-B1, dated 9th April, 1958.]

 

1[17. Defence by an indigent person

 

Any defendant, who desire to plead a set-off or counter-claim, may be allowed to set up such claim as an indigent person, and the rules contained in this Order shall so far as may be, apply to him as if he were a plaintiff and his written statement were a plaint.

 

1. Ins. by Act No. 104 of 1976, sec. 81 (w.e.f. 1-2-1977).

 

HIGH COURT AMENDMENT

 

Bombay.-In Order XXXIII, for rule 17, substitute the following rule, namely:-

 

“17. Defence by an indigent person.-Any defendant, who desire to plead a set off or counter-claim, may be allowed to set up such claim as an indigent person and the rules contained in this order shall so far as may be, apply to him as if he were a plaintiff and his written statement were a plaint, and if he is required to issue a third party notice, the third party notice shall also be deemed to be a plaint for the purpose of this rule.” (w.e.f. 1-10-1983)

 

1[18. Power of Government to provide for free legal services to indigent persons.

 

(1) Subject to the provisions of this Order, the Central or State Government may make such supplementary provisions as it thinks fit for providing free legal services to those who have been permitted to sue as indigent persons.

 

(2) The High Court may, with previous approval of the State Government, make rules for carrying out the supplementary provisions made by the Central or State Government for providing free legal services to indigent persons referred to in sub-rule (1), and such rules may include the nature and extent of such legal services, the conditions under which they may be made available, the matters in respect of which, and the agencies through which, such services may be rendered.]

 

1. Ins. by Act 104 of 1976, sec. 81 (w.e.f. 1-2-1977).

 

HIGH COURT AMENDMENT

 

Bombay.-In Order XXXIII, after rule 18, insert the following rule, namely:- “19. An indigent not to compromise suit without leave of Court.-No cause, suit or matter commenced or carried on by an indigent plaintiff or defendant shall be compromised on any account whatsoever leave first had and obtained from the Judge in Chambers or the Court.” (w.e.f. 1-10-1983)

 

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