APPEAL BY INDIGENT PERSON

Introduction
Order 33 deals with suits by indigent persons. Order 44 deals with appeals by indigent
persons. The provisions of Order 33 are intended to enable indigent persons to institute and
prosecute suits without payment of any court fees. Generally, a plaintiff suing in a court of
law is bound to pay court fees prescribed under the Court Fees Act at the time of
presentation of plaint. But a person may be too poor to pay the requisite court fee. This
order exempts such person from the court fee at the first instance and allows him to
prosecute his suit in forma pauperis.


Who may Appeal
Rule1– Any person entitled to prefer an appeal, who is unable to pay court fee required
for the memorandum of appeal, may present an application accompanied by a
memorandum of appeal, and may be allowed to appeal as an indigent person. Before the
Amendment Act of 1976, certain restrictions were imposed on the right of an indigent
person to prefer an appeal under sub-rule (2) of Rule 1. It provided that the court shall
reject the application to appeal in forma pauperis, unless it is shown that the decree is
contrary to law, or to some usage having the force of law, or is otherwise erroneous or
unjust. Those restrictions were considered to be unjust, unfair, discriminatory
As per the recommendation of The Law Commission present position is that an indigent
person may also file an appeal on all the grounds available to an ordinary person. An
indigent person can also file cross-objections.


Inquiry
Rule 3– It provides that where the appellant was allowed to sue as an indigent person in
the trial court, no fresh inquiry is necessary if the applicant files an affidavit to the effect
that he has not ceased to be an indigent person since the date of the decree appealed from.
However, if the government pleader or the respondent disputes the truth of the statement
made in such affidavit, an inquiry into the question as to whether or not the applicant is an
indigent person shall be held by the appellate court, or under its order by an officer of that
court. Where it is alleged that the applicant became an indigent person after the date of the
decree appealed from, the inquiry into the means of the applicant shall be made by the
appellate court or under its order by an officer of that court or by the trial court if the
appellate court considers it necessary in the circumstances of the case.


Power and Duty of Court
At the stage of hearing of an application, the question to be considered by the court is
whether the applicant is an indigent person. If he is, the application will be allowed and the
memorandum of appeal will be registered. If he is not, the application will be rejected.


Payment of Court Fees
Rule 2 -The rejection of an application for leave to appeal as an indigent person does not
ipso facto result in the rejection of the memorandum of appeal filed along with the
application. It only means that the court is not satisfied about the claim of the applicant that
he is an indigent person and nothing more empowers the court to grant time for payment of
court fees when the application for leave to appeal as an indigent person is rejected.
Limitation

The period of limitation for presenting an application for leave to appeal as an indigent
person to the High Court is 60 days and to other courts is 30 days. The limitation starts
from the date of the decree appealed from.
Letter Patent Appeal
There is difference of opinions as to whether a Letters Patent Appeal lies against an order
granting or refusing to grant leave to appeal as an indigent person. The majority opinion,
however, is that an appeal is maintainable against such orders. The expression “appeal” as
used in Order 44 is very wide and comprehensive and includes a Letters Patent Appeal.
The phrase “any person entitled to prefer an appeal” takes within its sweep not only : the
persons who are entitled to prefer an appeal as of right but also the persons who can file an
appeal with the leave of the court.

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