The notion of justice evokes the rule of law and it refers to the resolution of conflicts by

institutions that make laws and by those that enforce it. Justice implies fairness and the
implicit recognition of the principle of equability [1].Access to justice is inherent in the
concept of justice. The basic purpose which is intended to be served by providing access to
justice are is to ensure that every person is able to invoke the legal processes for redressal,
irrespective of social or economic status or other incapacity. Unless the poor and the
weaker section of the society are able to take advantages of administration of justice and
are able to assert for their rights, democracy cannot be said to be blooming. Legal aid is a
noble approach to help the deprived and underprivileged [2].Legal Provisions in relation to
Legal aid can be classified under three broad categories: (i) Constitutional [3](ii) Procedural
[4](iii) Statutory [5]

This article deals with the legal provisions related to Legal aid under the Civil Procedure
Code, 1908. Order 33 of CPCprovides for filing of suits by indigent persons. It enables
persons who are too poor to pay court fees and allow them to institute suits without
payment of requisite court fees.

Introduction
Order 33, C.P.C, deals with the suit filed by Indigent persons. Previously, the expression
“Pauper” was used. Further, the expression “Indigent person” was substituted in places
where the word “pauper” had occurred because it was inappropriate particularly after India
wedded to a socialistic pattern of society[6]. It was done in accordance to the
recommendation of the Law commission in its 54th Report[7]. For institution of suits court-
fee has to be paid. But, there are innumerable persons who owing to that poverty are
unable to pay the court-fee, and to enable them to file suits exemption from court-fee is
provided for under Order 33 of C.P.C.

The basic object of Order XXXIII was widely discussed by Kerala High Court in Sumathy
Kutty v. Narayani, where it was observed that the real test is whether the petitioner is in a
position in the ordinary course to convert his possessions, if any, into liquid cash without
undue hardship and delay for the purpose of paying the requisite court-fee.[8]

The term “Indigent person” has been defined underOrder 33 Rule 1, a person is an indigent
person if he does not have sufficient means other than property excused from attachment in
execution of the degree, to enable him to pay prescribed fees. The Supreme Court of India
in the case of UOI v. Khader International Construction has held that, the word “person”
mentioned in Order XXXIII, Rule 1 includes not only a natural person but other judicial
person such as a public limited company[9].

The claim should be presented to the court by the applicant in person, until he is exempted
from appearing in court in which case the application may be presented by an authorized
agent, who would answer all substantial queries involving the application. The court will
examine the applicant or his agent regarding the merits of the claim and the property of the
applicant[10].

Procedure
When the court sees no reason to reject the application on any of the grounds as per Rule
5, it shall fix a day after notice to the defendant and the Government pleader for receiving
such evidence as the applicant may offer in proof of his indigence, and for hearing any
evidence which may be presented in rebuttal thereof.

The court questions the witnesses produced by both the parties and the applicant or his
agent makes a full record of their evidence and hears arguments and after such hearing the
court may permit or refuse to allow the applicant to sue as an indigent person[11]. Where
the application is approved it is numbered and registered and is considered as the plaint in
the suit. The suit then proceeds in the ordinary manner, however the plaintiff is not liable to
pay any court-fee.[12]

Under Order XXXIII, Rule 9, it is open to the court on the application of the defendant to
withdraw the plaintiff’s permission to sue as an indigent person on the grounds specified.
Where an individual, who is allowed to sue as an indigent person, is not represented by a
pleader, the court may, as per the circumstances of the case, allot a pleader to him[13].

Where the plaintiff succeeds in the suit, the court will estimate the sum of court-fees which
would have been paid by the plaintiff if he had not been allowed to sue as an indigent
person, and such amount shall be recoverable by the State Government from any party
ordered by the decree to pay the same[14].

But in a situation where a suit is filled by the indigent person for realization of full contractual
amount from government and decree was passed in favour of plaintiff. Order was issued to
defendant State Government to pay cost of plaintiff as liability was imposed on defendant to
pay court fee payable to Government. Hence, proceedings started against plaintiff for
recovery of court fee was not maintainable[15].

An Anomaly In Order 33 of CPC

When the petition filed asan Indigent person is registered as suit, the plaintiff gets on with
the trial of the case. Either he has to succeedorfail — the inevitable consequences of any
litigation. If he succeedsOrder33, Rule 10 provides that the amount of court-fee shall be
recoverable by the State Government from any party ordered by the decree. This is a
reasonable provision and none can find fault with the procedure set forth in it[16]. The
hardship comes to the indigent person if he fails in the suit. The defeated indigent person at
first suffers from the result of the case. More hardships are in store for him under Rule 11
which provides for a Procedure where Indigent person fails[17].

The provisions for payment of court-fee set forth in the section can be said to be reasonable
whenthe permission granted to him to sue as an indigent person has been withdrawnorthe
suit is withdrawnordismissed for default, as set forth thereunder. But the penalty of the
provision for payment of court-fee on the plaintiff/indigent person because he fails in the suit
on merits is unjust, shocking and is opposed to the principles of Natural Justice; unjust
because he fails in the suit after contest. His position as an indigent person does not
change and the poor does not become affluent overnight in view of the adverse result. His
status remains the same irrespective of the result of the suit and hisbona fidesdo not
undergo any change. The constitutional validity of the unreasonable provision is a matter to
be tested.

Hence, this article suggest that Order 33, Rule 11, C.P.C can be amended deleting the
sentence “Where the plaintiff fails in the suit”.

Conclusion
Thus on the application to sue as indigent person being granted, the plaintiff shall not be
liable to pay court fee and in case he is not represented by a pleader, the Court may assign
a pleader to him if the circumstances of the case so requires. Rule 18 of order XXXIII of the
Civil Procedure Code states that the Central and State Government may make such
additional provisions as it thinks fit for providing free legal services to those who have been
allowed to sue as indigent persons. Rule 15 provides for provisions regarding refusal to
allow applicant to sue as indigent person to bar subsequent application of like nature. The
Order XLIV makes provisions in respect of appeals by indigent persons.[18]

The advocates Act 1961 also makes provision for Bar Council of India in exercise of its rule
making power under Section 49 (1) (C) of the Advocates Act 1961 and under Rule 46 of
Chapter II of part - 6 of the Bar Council of India to make a duty of an advocate to render
legal aid to an indigent person who approach an advocate in his individual capacity.
Supreme Court has emphasized the importance of Legal Aid to the poor and the needy
from time to time in cases like Sheela Barse Vs. State of Maharashtra[19], Sunil Batra V.
Delhi Administration[20]; M.H. Hoskot v. State of Maharashtra[21]; Hussainara Khatoon
Vs. State of Bihar[22] and Khatri Vs. State of Bihar.[23]