CODE OF CIVIL PROCEDURE – II

MODULE 1- SPECIAL SUITS

PART 1
 ADHEENA BIJU, JUNE 2023

MATERIALS REFERRED:

1. C K TAKWANI, “Civil Procedure with Limitation Act, 1963”, Eighth Edition, EBC, Lucknow, 2018
2. MULLA, “The Code of Civil Procedure”, Twentieth Edition, Lexis Nexis, Delhi, 2022
3. YOUTUBE LINK https://www.youtube.com/@JusticeKTSankaran

Important Topics From Examination POV:

 Statutory Notice in case of suits against govt.

 Suits by/against Minor
 Interpleader Suits
 Indigency: Practice and Procedure

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SECTION ORDER TYPE OF SUIT

Ss. 79 - 82 Order 27 Suits by / against the Government

Ss. 83 - 85 Suits by / against aliens, foreign rulers, ambassadors
S. 88 Order 35 Interpleader Suits
Order 29 Suits by/against Corporations
Order 31 Suits by / against Trustees, Executors & Administrators
Order 32 Suits by/against Minors & Unsound persons
Order 33 Suits by Indigent Persons
S. 91 Suits relating to Public Nuisances
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SUITS BY OR AGAINST
THE GOVERNMENT

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SUITS BY OR AGAINST THE GOVERNMENT OR PUBLIC

OFFICERS IN THEIR OFFICIAL CAPACITY

 Merely the procedure is prescribed in CPC. Substantive rights are determined as

per Constitutional provisions.
 Govt is represented by “the Pleader” – Agent of the govt.
 Mandatory Statutory Notice in writing- S. 80(1) :
“….until the expiration of two months next after notice in writing has been delivered…”
Essentials of Notice: Name and address, cause of action, relief claimed.
Mode of service of Notice: Deliver it or leave it at the respective office.

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TO WHOM SHOULD THE NOTICE B ADDRESSED

 Suit against the Central Government. --- Secretary to that Government

 Railway --- General manager of Railway
 Suit against any State Government. --- Chief Secretary

 Suit against any District --- District Collector

 Deliver to him or leave the notice at his office

 Any Public Officer

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 LEGISLATIVE INTENT BEHIND S. 80, CPC
 It is a measure of public policy. To prevent usage of public money and time for unnecessary
litigation.
 To afford an opportunity for settlement and negotiation of claims before approaching courts.
 “The provision of notice is intended to alert the Government or public officers to negotiate
just settlement or at least have the courtesy to tell the “potential outsider” why his claim is
being resisted”--- State of Punjab v. Geeta Iron & Brass Works Ltd., AIR 1978 SC 1608
 Bihari Chowdhary v. State of Bihar (AIR 1984 SC 1043)
“The Government, unlike private parties, is expected to consider the matter covered by the notice in a most objective
manner, after obtaining such legal advice as they may think fit, and take a decision in public interest within the
period of two months allowed by the Section as to whether the claim is just and reasonable and the contemplated
suit should, therefore, be avoided by speedy negotiations and settlement or whether the claim should be resisted by
fighting out the suit if and when it is instituted.” 7
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URGENT RELIEF – S. 80(2)

 Inserted by the 1976 Amendment. It is an exception to mandatory statutory
notice rule.
 A suit against the government / public officer can be instituted without the
service of notice to obtain an urgent or immediate relief.
 Leave of the court is a pre-requisite.
 Court shall not grant relief unless the government/ public officer is given a
reasonable opportunity of showing cause in respect of the relief prayed in the
suit.
 After hearing the parties, if the court is not satisfied as to the urgency of relief
sought, the plaint shall be returned for proper presentation after complying
with S. 80(1) requirements. 8
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PREMATURE SUITS

 A suit instituted before the expiry of two months of notice is liable to be dismissed
only on that ground.

SPECIFIC STATEMENT IN PLAINT

 After the expiration of two months notice period, suit can be instituted by filing the
plaint. It is mandatory that the plaint must contain a specific statement as regards
the serving of statutory notice.
 In case there is an omission to make such a statement, the plaint will be rejected by
the Court. 9
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WHAT IS MEANT BY RETURN, REJECTION & DISMISSAL OF PLAINT?

 RETURN: Purpose is for re presentation of plaint in the proper court. A plaint

can be returned at any stage of the suit. On returning a plaint, the Judge shall
endorse thereon the date of its presentation and return, the name of the party
presenting it, and a brief statement of the reasons for returning it.
 REJECTION: A plaint gets rejected on statutory grounds like non-disclosure
of cause of action, non-payment of court fee, when suit is undervalued etc.
There is scope for representation of plaint after making necessary corrections.
 DISMISSAL: A suit gets dismissed at pretrial stage on the ground of
maintainability. It denotes non-entertainment by the court.
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ERRORS OR DEFECTS IN NOTICE U/S. 80 CPC--- WHEN NOT FATAL?

The State of A.P. vs. G.V. Suryanarayana, AIR 1965 SC 11
 Every venial error or defect in notice u/s. 80 CPC is not fatal and such venial error or defects
cannot be permitted to defeat a just claim if on a reasonable reading but not so as to make undue
assumptions, the plaintiff is shown to have given the information which the statute requires him to
give, any incidental defects or errors may be ignored.
 Though the terms of Sec. 80 CPC are to be strictly complied with, it does not mean that the terms
of the notice should be scrutinized in a pedantic manner or in a manner completely divorced from
common sense.

Ghanshyam Dass vs. Dominion of India, AIR 1984 SC 1004

 Where notice u/s. 80 CPC by plaintiff ’s father was issued to the Government but before the
expiration of next two months and institution of suit, the plaintiff ’s father died and the suit was
then filed by the son without giving fresh notice u/s. 80 CPC, it has been held by the Supreme
Court that the notice u/s. 80 CPC already issued is sufficient and fresh notice is not necessary. 11
SUITS BY ALIENS OR BY OR
AGAINST FOREIGN RULERS,
AMABASSADORS AND
ENVOYS
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S. 83- WHEN ALIENS MAY SUE?

 Alien enemies residing in India with the permission of the Central Government,
and alien friends, may sue in any Court otherwise competent to try the suit, as if
they were citizens of India, but alien enemies residing in India without such
permission, or residing in a foreign country, shall not sue in any such Court.

 Explanation. —Every person residing in a foreign country, the Government of

which is at war with India and carrying on business in that country without a
licence in that behalf granted by the Central Government, shall, for the purpose
of this section, be deemed to be an alien enemy residing in a foreign country.
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 S. 84 & S. 85 -- WHEN FOREIGN STATES MAY SUE.
Sec 84: A foreign State may sue in any competent Court :
Provided that the object of the suit is to enforce a private right vested in the Ruler of
such State or in any officer of such State in his public capacity.
Sec. 85: Persons specially appointed by Govt. to prosecute or defend on behalf of
foreign Rulers.
 The Central Government may, at the request of the Ruler of a foreign State, by
order, appoint any person to prosecute or defend any suit on behalf of such Ruler.
 Any persons so appointed shall be deemed to be recognized agents of such Ruler.
 Such appointments may be made for the purpose of a specified suit or of several
specified suits. 4/3B 14
INTERPLEADER SUITS

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INTERPLEADER SUITS

 Sec. 88 & Order 35

Meaning of “Interplead”:
To litigate with each other to settle a point concerning a third party.
 A special suit in which the real dispute is not between the plaintiff & defendant
but between defendants who interplead against each other. The plaintiff is not
really interested in the subject matter of the suit.
 Object of Interpleader Suits: To get claims of rival defendants adjudicated.

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INTERPLEADER SUITS (2/)

The property is B claims property

in X’s Possession

 B and C are rivals

 X does not claim any interest in the property.
C claims property
 X is ready to deliver it to the rightful owner
 X can institute an interpleader suit.

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INTERPLEADER SUITS (2/)

1000 tones of
goods is in the
B, a vendor claims property
possession of a
railway company

 B and C have rival claims.

 The rly. company has no interest in the property
except for wharfage, loading charges .
C claims property
 The rly. company is in dire need of disposing the
goods by delivering it to the rightful owner
 The rly company can institute an interpleader suit.

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CONDITIONS TO BE SATISFIED BEFORE FILING AN INTERPLEADER SUIT

1. There must be some debt, sum of money or other property (movable or immovable) in
dispute.
2. Two or more persons must be claiming it adversely to one another.
3. The plaintiff should have no other interest in the property other than the charges or cost.
4. The plaintiff must be ready and willing to pay or deliver it to the rightful claimant.
5. There must be no suit pending wherein the rights of rival claimants can be properly
adjudicated.
6. Court must see that there is no collusion between the plaintiff and any of the defendants.

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LOCUS STANDI TO FILE INTERPLEADER SUITS

Who can file Interpleader Suits? Who cannot file interpleader suits?
 Any person who has no interest in the  AGENT cannot sue his principal.
property except for charges or costs.
An agent cannot dispute the title of his Principal
 This person is ready to deliver the during the subsistence of agency.
property to the rightful claimant. A deposits a box of jewels with B as his agent. C alleges that the
Eg: ‘M’ has 2 crores fix deposit. He has two wives jewels were wrongfully obtained from him by A, and claims them
and both wives have one child each. Both of them from B. B cannot institute an interpleader-suit against A and C.
claim the money for their child maintenance. The
 TENANT cannot sue his landlord.
bank filed a suit in the court to know the order
related to the real owner of the money for the A tenant cannot dispute the title of his landlord during
maintenance of the child. the subsistence of the tenancy. 20
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A deposits a box of jewels with B as his agent. He then writes to C for the purpose of
making the jewels a security for a debt due from himself to C. A afterwards alleges that
C’s debt is satisfied, and C alleges the contrary. Both claim the jewels from B. B may
institute in interpleader-suit against A and C.

“A” informs “C” that the jewels can be

made security for a debt availed from “C” “C”, the
Principal creditor
“A”

Agent
“B”
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DUTIES OF COURT UNDER ORDER 35

 PLAINT: See that the plaint contains statement to the effect that

(a) that the plaintiff claims no interest in the subject-matter in dispute other than for
charges or costs;
(b) the claims are made by the defendants severally; and
(c) that there is no collusion between the plaintiff and any of the defendants.
 PAYMENT OF THING CLAIMED INTO COURT : Where the thing claimed is capable of
being paid into Court or placed in the custody of the Court, the plaintiff may be required to
so pay or place it before he can be entitled to any order in the suit.
 AT FIRST HEARING: If the Court feels so, it may Declare that the plaintiff is discharged
from all liability to the defendants in respect of the thing claimed, award him his costs, and
dismiss him from the suit. However, if it thinks that justice or convenience so require, retain
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all parties until the final disposal of the suit.

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PROCEDURE WHERE DEFENDANT IS SUING PLAINTIFF

 Where any of the defendants in an interpleader-suit is actually suing the plaintiff

in respect the subject-matter of such suit, the Court in which the suit against the
plaintiff is pending shall, on being informed by the Court in which the
interpleader-suit has been instituted, stay the proceedings as against him; and
 His costs in the suit so stayed may be provided for in such suit; but if and in so far
as, they are not provided for in that suit, they may be added to his costs incurred
in the interpleader-suit.

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CASE LAWS ON INTERPLEADER SUITS

 Asan v. Saroda, AIR 1922 Cal 138
It was held that, where defendants do not claim adversely to each other, nor does the plaintiff admit
the title of one of the defendant or is willing to pay or deliver the property to him, the suit is not
interpleader.
 Satyanarain v. District Judge, Tonk & Ors
It was held that, it is not as if that once the suit for interpleader is filed, the other civil suit has to be
stayed automatically; in order to invoke the power under Order 35, Rule 3 of the C.P.C, the plaintiff
(or interpleader) is duty bound to establish a prima facie case in his favour.
 N.M.N. Duraiswami Chettiar v. Dindigul Urban Co-operative Bank Ltd, AIR 1957 Mad 745
It was held that, on a dispute as to the ownership of the deposit arising between the customers and
the third person, an interpleader suit filed by the bank, would not come within the prohibition of
Order XXXV, Rule 5 of the Code of Civil Procedure, 1908. 24
SUITS BY OR AGAINST
CORPORATIONS

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ORDER 29 -- SUITS BY OR AGAINST CORPORATIONS

 1. Subscription and verification of pleading.—In suits by or against a corporation,
any pleading may be signed and verified on behalf of the corporation by the secretary or
by any director or other principal officer of the corporation who is able to depose to the
facts of the case.
 2. Service on corporation.—Subject to any statutory provision regulating service of
process, where the suit is against a corporation, the summons may be served—
(a) on the secretary, or on any director, or other principal officer of the corporation, or
(b) by leaving it or sending it by post addressed to the corporation at the registered
office, or if there is no registered office then at the place where the corporation carries on
business.
 3. Power to require personal attendance of officer of corporation.—The Court may,
at any stage of the suit, require the personal appearance of the secretary or of any
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director, or other principal officer of the corporation who may be able to answer material
questions relating to the suit.
SUITS BY/AGAINST TRUSTEES,
EXECUTORS &
ADMINISTRATORS – Order 31

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 REFER TO THE DEFINITION OF “LEGAL REPRESENTATIVES” PROVIDED U/s. 2(11) of CPC, 1908

TRUSTEES
• A trust has two owners, namely, the legal owner (trustee) and the beneficial owner
(beneficiary) creating duplicate ownership. The ownership of a trustee is nominal and not
real. In a trust, the relationship between the two owners is such that one of them is under
an obligation to use his ownership for the benefit of the other. In the eye of law, the trustee
represents his beneficiary.
EXECUTORS
• Sec. 2 (c) of Indian Succession Act, “executor” means a person to whom the execution of
the last Will of a deceased person is, by the testator's appointment, confided;

ADMINISTRATOR
• Sec. 2 (a) of Indian Succession Act “administrator” means a person appointed by
competent authority to administer the estate of a deceased person when there is no 28

executor; ADHEENA BIJU, JUNE 2023

 ADHEENA BIJU, JUNE 2023

ORDER XXXI
SUITS BY OR AGAINST TRUSTEES, EXECUTORS AND ADMINISTRATORS
 1. Representation of beneficiaries in suits concerning property vested in trustees etc.—
In all suits concerning property vested in a trustee, executor or administrator, where the contention is
between the persons beneficially interested in such property and a third person, the Trustee, the
Executor or the Administrator shall represent the persons so interested, and it shall not ordinarily be
necessary to make them parties to the suit. But the Court may, if it thinks fit, order them or any of
them to be made parties.
 2. Joinder of trustees, executors and administrators.—Where there are several trustees, executors
or administrators, they shall all be made parties to a suit against one or more of them:
Provided that the executors who have not proved their testator’s will, and trustees, executors and
administrators outside India, need not be made parties.
 3. Husband of married executrix not to join.—Unless the Court directs otherwise, the husband of
a married trustee, administratrix or executrix shall not as such be a party to a suit by or against her. 29
SUITS BY/AGAINST
MINORS & UNSOUND
PERSONS – Order 32
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 “Minority” and “unsoundness of mind” are legal disabilities.

 Order 32 has been specially enacted to protect the interests of minors and persons of
unsound mind and to ensure that they are represented in suits or proceedings by persons
who are qualified to act such.
 A minor is a person who has not attained the age of majority within the meaning of S. 3
of the Indian Majority Act.

When the minor is the Plaintiff – Suit to be filed through the “next friend.”
When the minor is the Defendant – Suit to be defended through the “Guardian”
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“NEXT FRIEND”

 Next friend is a legal representative for persons suffering from legal disability.
 “A next friend is not a party to a suit or appeal. He is merely named in the record as the
person to look after the interest of the minor or an unsound person”-----------------[Rup
Chand v. Dasodha, (1908) ILR 30 All 55]
 His legal standing as a ‘next friend’ is only for procedural purposes and limited to that
proceeding for which he was recognised by the court.
 Next Friend’s liability: The ‘next friend’ does not only represent the interests of the minor
or person of unsound mind but is also held responsible for other purposes. Where a suit
brought by a minor through his next friend is dismissed by a court and it has emerged that
the suit was not to the benefit of the minor, the court may direct the next friend personally
to pay the costs. 32
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WHERE SUIT IS INSTITUTED WITHOUT NEXT FRIEND

 Defendant, in such situations can apply to the court to have the plaint taken off
the file.
 The court can order the costs to be paid by the pleader or any other person by
whom it was represented.
 The other party shall be given reasonable opportunity for raising objections.

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“GUARDIAN AD LITEM”
Guardian for the suit. The guardian ad litem is not a party to the suit or appeal.
 Who has the authority to appoint?
The court, on being satisfied about the fact of minority of the defendant, shall appoint a
proper person to be guardian for the suit for such minor.
 Who can apply for an order for appointment of a guardian? What is the procedure that
follows?
Any person in the name and on behalf of the minor OR the plaintiff. Such applications to be
supported by Affidavit verifying the fact that the proposed guardian has no adverse interest to
that of the minor and that he is a fit person to be so appointed.
Requirement of serving notice by the Court to any guardian of the minor appointed by a
competent authority, father, mother or other natural guardian of the minor or even to the
minor also.
Provide opportunity for raising objections. Consent of prospective guardian to be obtained by
the Court. If there is no other person fit and willing to be the guardian, the court may appoint
any of its officers be such guardian.
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QUALITIES PRESCRIBED- O.32, R.4

The next friend or the Guardian ad litem

 Should be a person of sound mind.
 Should have attained majority
 The interests of such person should not be prejudicial or adverse to that of the
minor.
 He is not, in the case of a next friend, a defendant, or, in the case of a guardian
for the suit, a plaintiff.

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RETIREMENT OR REMOVAL OF NEXT FRIEND – R. 8 & R.9

Retirement:
o A Next friend shall not retire without first procuring a fit person to substitute him.
o The application for the appointment of a new next friend shall be supported by an affidavit showing
the fitness of the person proposed and also that he has no interest adverse to that of the minor.
In the following situations, a next friend shall be removed by the Court.
o Where the interest of the next friend is adverse to that of the minor , or
o Where he is so connected with a defendant whose interest is adverse to that of the minor as to make
it unlikely that the minor's interest will be properly protected by him, or
o Where he does not do his duty, or,
o During the pendency of the suit, ceases to reside within India, or
o Guardian appointed by a Competent authority applies to the Court to appoint him as Next friend.
o Any other sufficient cause,
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Who shall apply to get the next friend removed?
Application may be made on behalf of the minor or by a defendant for his removal.
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RETIREMENT, REMOVAL OR DEATH OF GUARDIAN FOR THE SUIT

 Where the guardian for the suit desires to retire or

 Where the guardian for the suit does not do his duty, or
 Death
 Any other sufficient ground.
The Court may permit such guardian to retire or may remove him and it shall appoint a new
guardian in his place.

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COURSE OF ACTION WHEN A MINOR PLAINTIFF ATTAINS MAJORITY

On attaining majority, he/she obtains the right to elect whether he will proceed with the suit or not.

Where the minor elects to proceed

• He shall apply to the Court for an order discharging the next friend.
• And also for leave to proceed with the suit in his own name.
• Notice to be served on the next friend.
• The title of the suit or application shall in such case be corrected so as to read
henceforth thus :“A.B., late a minor by C.D., his next friend, but now having attained
majority.”.
Where the minor abandons the suit
• Apply to the Court for an Order to dismiss the suit or application on repayment of
the costs incurred by the defendant which may have been paid by his next friend. 38
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WHEN THE MINOR IS A CO- PLAINTIFF

Minor wishes to repudiate the suit

Filing an application to have his/her name struck out as co-

plaintiff;

Notice of the application shall be served on the next friend,

on any co-plaintiff and on the defendant

On receiving application, the Court should determine

whether he/she is a necessary party or not

If a necessary party, he/she shall be made a defendant. If not,

he/she shall be dismissed from the suit. 39
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UNREASONBALE OR IMPROPER SUIT

 Upon attaining majority, the minor becomes entitled to challenge the suit on the ground that it
was unreasonable or improper.
 However, this is possible only in cases where the minor is the sole plaintiff.
 The prayer of the minor should be to dismiss the suit instituted in his name by his next friend.
 Notice of such application shall be served on all parties concerned (next friend and defendants) by
the Minor.
 The minor (now major) shall prove the unreasonableness or impropriety of the suit.
 Thereafter, the Court, upon being satisfied of such unreasonableness or impropriety, may grant
the application and order the next friend to pay the costs of all parties in respect of the
application and of anything done in the suit, or make such other order as it thinks fit. (costs
include expenses incurred by the minor to move the application to dismiss the suit and expenses40
of the defendnats, witnesses involved)
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R. 3A -- SETTING ASIDE OF DECREES IN CASE OF ALLEGED

PREJUDICE
Is there any relief available to the minor if the next friend/ guardian is negligent ?
 Minor does not have any relief under CPC however the Minor is always at liberty to obtain any
relief available under any other law by alleging misconduct or gross negligence on the part of the
next friend or guardian for the suit, and further allege that
 Thereby prejudice has been caused to the interests of the minor.
Can the minor apply to have the decree set aside in his own capacity?
 Minor is at liberty to apply to the court to set aside the decree.
 He has to prove that the next friend/ guardian had an interest in the subject-matter of the suit
adverse to that of the minor.
AND
 by reasons of such adverse interest of the next friend or guardian for the suit, prejudice has been 41

caused to the interests of the minor.

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RAJ BEHARI LAL & Ors. V. DR. MAHABIR PRASAD, AIR 1956 ALL 310

Issue: Who should represent the minor plaintiff in appeal proceedings

 Appeal is the continuation of suit itself. The guardian of the minor who had been appointed in the
suit while it was pending in the trial Court must continue even in appellate proceedings unless his
appointment is terminated by retirement, removal or death.
 When an appeal is filed by a defendant minor, his guardian ad litem appointed in the suit must
describe himself in the memorandum of appeal as the guardian of the minor and not as a next
friend.
 Where the appeal is by a minor plaintiff, then alone the person representing the minor appellant will
be described as next friend, because he was so described in the suit.

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KAKUMANU PEDA SUBBAYYA VS. KAKUMANU AKKAMMA 1958 AIR 1042

Issue: Legal effect of minor’s death on the continuation of suit.

 Suit instituted on behalf of a Hindu minor, aged 2.5 years for partition of the joint family
properties. The suit was instituted by his material grandfather, Rangayya, as his next friend.
 The minor plaintiff died during the pendency of the suit.
 His Mother as the legal representative was allowed to continue the suit as the second plaintiff, and
the suit was decreed as it was found that the defendants had been acting against the interests of the
minor and that the suit for partition was therefore beneficial to him.
 the suit did not abate and the legal representative was entitled to continue the suit and obtain a
decree on showing that when the suit was instituted it was for the benefit of the minor.

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UNSOUND MIND
 The plaintiff or the defendant should be adjudged to be a person of unsound mind.
 Before or during the pendency of the suit.
 Court must reach a conclusion after conducting an inquiry into the unsoundness of the party.
 Then, Rules 1 to 14 (except rule 2A) of Or.32 shall, so far as may be, apply to persons adjudged
unsound.
 It may also apply to persons who, though not so adjudged, are found by the Court on enquiry to
be incapable, by reason of any mental infirmity, of protecting their interest when suing or being
sued.
MARY V. LEELAMMA 2020 SCC OnLine Ker 2491
Recently, a DB of Kerala High Court held that persons having physical infirmities like deafness or dumbness
which seriously affect their cognitive functions can file a suit through “next friend”. Unsoundness in the context
of Or. 32 is not merely mental disorder or insanity. In this case, a suit filed by one Leelamma, a deaf and dumb
person through her daughter was decreed by the trial court which was challenged before the H.C. The decree 44
was upheld and found to be of no legal irregularities.
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SUITS BY INDIGENT
PERSONS – Order 33
OR
Suits in forma pauperis
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RULE 1 -- WHO MAY APPLY TO SUE AS AN INDIGENT PERSON?

 Earlier titled as “Suits by Paupers”. The term “indigent persons” was later amended and inserted
through the 1976 Amendment Act.
Qualifications to sue as an indigent person
 He is not possessed of “sufficient means” to enable him to pay the fee prescribed by law for the
plaint in such suit. If no such fee is prescribed, then if he is not entitled to property worth one
thousand rupees.
Meaning of “sufficient means”: Realizable assets like liquid cash, deposits, salary, movable property
or immovable property.
In calculating the sufficient means, the value of property exempt from attachment in execution of a
decree and the subject-matter of the suit shall be excluded.
 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.
 Where the plaintiff sues in a representative capacity, the question whether he is an indigent46
person shall be determined with reference to the means possessed by him in such capacity.
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SEC. 60, C.P.C -- LIST OF ITEMS THAT ARE EXEMPT FROM

ATTACHMENT IN EXECUTION
 Stipends and gratuities allowed
 Necessary wearing apparels to pensioners of the These items which are exempted from
Government.
 Cooking vessels attachment in execution cannot be taken
 Salary to the extent of the first into consideration while calculating the
 Beds and bedding one thousand rupees and 2/3rd
of the remainder in execution net worth of a person to determine the
 Personal ornaments of any decree other than a indigency for the purpose of instituting
decree for maintenance. the suit.
 Tools of artisans  1/3rd of the salary in
 Cattle execution of any decree for
maintenance.
 Seed grains  All compulsory deposits and
other sums in or derived from
 The wages of Labourers and any fund to which the
domestic servants Provident Funds Act applies.
 All moneys payable under life
insurance policy of the
judgment debtor. 47
 ADHEENA BIJU, JUNE 2023

Q. What is the starting point of a suit by an indigent person?

A. A suit by a person claiming to be an indigent person commences from the moment of presentation of
application and not from the date of institution of plaint. The particular provision finds place in Rule 15
A to Order.33 & Sec. 3(2) of the Limitation Act. Date on which the application was converted to that of
a regular suit is of no consequence where the application is admitted. But where it is rejected, the suit
takes the ordinary course.
Q. The plaintiff filed a suit as an indigent person. Apart from the suit property, he has got another
property. But that property is involved in another suit. Plaintiff contends that it cannot be taken into
account for determining the “sufficient means” of the applicant. Decide.
A. On the face of Explanation to R.1, such contention cannot be accepted. The applicant is not entitled to
claim any exclusion from assessment of means. 2007(1)KLT 664.
Q. Whether the income and huge wealth of husband can be taken into account for determining the means
of the litigating wife?
A. Wife’s application for suing as an indigent person cannot be rejected on that grounds alone. [Resleth v. 48
Indian Bank, 1992(1) KLT 725]
 ADHEENA BIJU, JUNE 2023

FEATURES OF APPLICATION TO SUE AS 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. Suppression of such material facts is alone enough to reject the application.
 Application to be signed and verified.
 Applicant to present in person. In exceptional circumstances, an authorized agent can file it.

CHECKLIST FOR COURTS

 Manner of Presentation
 Contents of Application. 49
 ADHEENA BIJU, JUNE 2023

REJECTION OF APPLICATION TO SUE AS AN INDIGENT PERSON- R.5

 Application has note been framed and presented in the manner prescribed
 Where the court finds that the applicant is not an indigent person and he has stated falsely in the
application.
 Where the applicant has screened off some of his assets by disposing two months next before the
presentation of the application.
 His allegations do not show a cause of action, or
 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.
 Suit appears to be barred by any law for the time being in force.
 where any other person has entered into an agreement with him to finance the litigations 50
 ADHEENA BIJU, JUNE 2023

DETERMINING INDIGENCY:THE PROCEDURE

• Filing of Application to sue as an indigent person

• Examination of Applicant

• Court sees no ground to reject the application U/R.5 of Or.33

• Notice to opposite party

• Court fixes a date for hearing

• Court shall either ALLOW or REFUSE TO ALLOW the applicant to sue as an indigent person

51
• If allowed, the Application shall be numbered and registered. Application shall be deemed to be a Plaint.
 ADHEENA BIJU, JUNE 2023

WITHDRAWAL OF PERMISSION TO SUE AS AN INDIGENT PERSON

 Once an indigent person is not always an indigent person. The status of indigency can be revoked if
circumstances change.
Application to withdraw permission may move from
 The Defendant
 The State Government
 Accordingly, the Court may withdraw permission to sue as an indigent person under the following
three grounds
(a) If he is guilty of vexatious or improper conduct in the course of the suit;
(b) Change in “Means”: If it appears that his means are such that he ought not to continue to sue as an
Indigent Person, or
(c) If he has entered into any agreement with reference to the subject-matter of the suit under which 52

any other person has obtained an interest in such subject-matter.

 ADHEENA BIJU, JUNE 2023

CONSEQUENCES OF FILING AN INDIGENT SUIT

INDIGENT The Court shall calculate the Court fees and made
PERSON recoverable by the state Govt by any party to the
SUCCEEDS suit who is ordered to pay so.

SUIT If summons has not

DECREED been served on the The Court shall order the plaintiff,
defendant or any co-plaintiff to the suit, to
pay the court-fees which would
INDIGENT OR have been paid by the plaintiff if
PERSON FAILS he had not been permitted to sue
Plaintiff did not appear as an indigent person.
when the suit was
called on for hearing
53
 ADHEENA BIJU, JUNE 2023

ROLE OF STATE GOVERNMENT IN INDIGENT SUITS

 Levying court fees is mainly done to secure revenue for the benefit of the State. Court Fee is considered as a State debt.
 When the court interferes and declare a person to be indigent, it is the State govt, the rightful claimant who is deprived of
its source of revenue. Hence, even though permission to sue as an indigent person is allowed on discretionary basis, the
litigant is not absolutely exempted from payment of court fees.
 In case he succeeds, 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.
 Moreover, if 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 the amount of court-fees which would have been paid by the plaintiff if he had not been permitted to sue
as an indigent person shall be recoverable by the State Government from the estate of the deceased plaintiff.
 The following provisions under O.33 clarifies the position further:
Rule 12. State Government shall have the right at any time to apply to the Court to make an order for the payment of court-
fees .
Rule 13. State Government to be deemed a party in indigent suits.
Rule 14. Recovery of amount of court-fees.— The court shall 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
54

from the person or property liable for the payment as if it were an arrear or land revenue.
 ADHEENA BIJU, JUNE 2023

CASE LAWS ON INDIGENT SUITS

 Lakshmi v. Vijaya Bank
One Mr. R.V. Revanna filed a petition under Order 33 Rule 1 and Rule 7 wherein he represented himself to be an
indigent person. The respondent contended the petitioner to be an indigent person and questioned his indigency.
Before the cross-examination of the petitioner took place, he died leaving behind his wife and children. Thereafter
an application was filed by the petitioner’s wife to permit them to file the suit as a legal representative. The trial
court observed that in case of the death of the applicant, the legal representatives won’t be permitted to substitute
the indigent person as the right to sue as an indigent person is a personal right. The wife must prove that she is
indigent all over again and the earlier proceedings cannot be continued.
 Solomon Selvaraj v. Indirani Bhagawan Singh
Suit for declaration of title and for recovery of possession. The plaintiffs filed an application for permission to sue
as an indigent person. When there are more than one plaintiffs, each of them must prove that they are not equipped
of sufficient means to pay the court fees. The said application was opposed by the defendants on the grounds inter
alia that the suit is barred by res judicata; there is no cause of action for filing the suit. Trial court dismissed the
application of the plaintiff. Appealed before Supreme Court. Held, having prima facie found that the plaint does 55

not disclose any cause of action and the suit is barred by res judicata it cannot be said that the learned Trial Court
committed any error in rejecting the application to sue as indigent persons.
SUITS RELATING TO
PUBLIC NUISANCE
S. 91
56
 ADHEENA BIJU, JUNE 2023

Nuisance are of two kinds:

PUBLIC & PRIVATE

REMEDIES IN VARIOUS LAWS AGAINST PUBLIC NUISANCE.

1) Penal liability under Indian Penal Code – Sec. 268, IPC
2) Summary powers of Executive Magistrates to remove public nuisance – Sec.133 Cr. P.C

3) Institute a civil suit – Sec. 91, CPC

Note that remedy for private nuisance lies only in civil law. The aggrieved plaintiff has to prove
“special damages” to obtain appropriate remedy.
57
 ADHEENA BIJU, JUNE 2023

EXPLAINING “PUBLIC NUISANCE”

 The expression has not been defined under the Code. Therefore, for practical purposes, definition
from IPC may be used.
“Any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to
the public or to the people in general who dwell or occupy property in the vicinity, or which must
necessarily cause injury, obstruction, danger, or annoyance to persons who may have occasion to use
any public right.”
 Public nuisance is based on the principle embodied in the maxim of civil law “sic uteretuout rem
publicam non laedas”, which means ‘enjoy your property in such a way as not to injure the rights
of the public.
 Instances of public nuisance: Obstruction of public highway, pollution of public waterways,
storage of inflammable materials nearby, sound pollution
58
 ADHEENA BIJU, JUNE 2023

WHO CAN BRING A SUIT IN RELATION TO PUBLIC NUISANCE?

 Advocate General
Constitutional post created u/A. 165 of the Constitution of India. The Governor of each State shall
appoint a person who is qualified to be appointed a Judge of a High Court to be Advocate General for
the State . It shall be the duty of the Advocate General to give advice to the Government of the State
upon such legal matters, and to perform such other duties of a legal character.
 Two or more persons with the leave of the court.
This is a special instance where permission of the Court is required before instituting the plaint. It acts
a check and balance against frivolous and vexatious suits. Proof of damages is not mandatory. It is
enough to prove that injury might be the immediate consequence.
 Any private person if he has sustained special damages.
Here, the no. of litigants is of no importance. The law seeks to address the concerns and monetary
losses suffered by private individuals as a direct consequence of public nuisance. The standards
stipulated u/S. 73 of Indian Contract Act has to be applied here. 59
 ADHEENA BIJU, JUNE 2023

RELIEF GRANTED BY CIVIL COURTS

SUIT FOR
DECLARATION
& INJUNCTION SUIT FOR
DAMAGES

60