CODE OF CIVIL PROCEDURE, 1908

ORDER XXXIII: SUITS BY INDIGENT PERSONS

NOTES

● In India, many persons are unable to get justice through the legal system due to poverty
and vulnerability in the society. But, we cannot deny justice to them due to these reasons.
● Therefore, our Constitution guarantees Free Legal Aid to the poor and weak sections of
the society under Article 39 - A. Also under Articles 14 and 22 (1) the State is duty
bound to ensure equality of all citizens before Law and ensure the due process of law.
● In the legal sense, such persons who are unable to seek justice due to inability to pay
court fees because of poverty, lack of awareness, social disabilities are known as indigent
persons.
● With that motive it was introduced and Order XXXIII deals with Suits by Indigent
Persons. Rule 1 states that suits may be instituted by indigent persons.
● Who are indigent persons?:-

Explanation 1.—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.

If the court is satisfied with such an application and agrees to the fact that such person
has no means to pay the court fee, then the court will declare such person as an indigent
person.

(Union Bank of India v. Khader International Construction)

(a) The necessary wearing apparel, cooking vessels, beds;

(b) tools of artisans, agriculturist;

(c) houses and buildings belonging to an agriculturist, labourer or a domestic servant;

(d) books of account;

(e) a mere right to sue for damages;

(f) any right of personal service;

(g) stipends and gratuities allowed to pensioners;

(h) the wages of labourers and domestic servants;

(i) salary to the extent of the first four hundred rupees and two-third of the remainder in the
execution of any decree other than a decree for maintenance:

(ia) one-third of the salary in the execution of any decree for maintenance;

(j) the pay and allowances of persons to whom the Air Force Act, 1950 or the Army Act,; 1950
or the Navy Act (62 of 1957), applies;

(k) compulsory deposits and sums to which Provident Funds Act, 1925;

(ka) deposits and sums to which the Public Provident Fund Act applies;

(kb) all money payable under a judgment debtor’s policy of insurance;

(l) any allowance forming part of the emoluments of any government servant;

(m) an expectancy of succession by survivorship or other merely contingent or possible right or

(n) a right to future maintenance;

(o) any allowance declared by any Indian law to be exempt from liability to attachment or sale in
execution of a decree; and

(p) where the judgment-debtor is a person liable for the payment of land revenue; any movable
property which, under any law for the time being applicable to him, is exempt from sale for the
recovery of arrears of such revenue.

● A.A. Haja Muniuddin v. Indian Railways:

“Access to justice cannot be denied to an individual merely because he does not have the
means to pay the prescribed fee.”
● Explanation 2: 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.
● While deciding whether a person is indigent or not, any property which is
acquired/purchased/sold by the indigent person after presenting his application in the
competent court for seeking permission to sue as an indigent person, and if such
exchange of property is done before the court makes a decision on the application, then in
such case, the properties so acquired/purchased/sold are mandatorily required to be taken
into account while deciding the question of whether or not an applicant is an indigent
person.
● Explanation 3—Where the plaintiff sues in a representative capacity, the question
whether he is an indigent person shall be determined with reference to the means
possessed by him in such capacity.
● In Lakshmi v Vijaya Bank, R.V. Revanna filed a petition under Order XXXIII 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.
● “Possession of sufficient means”: a person’s capacity to mobilise funds by lawful means.
Indigent person is such person who is not possessed of sufficient means due to bad
economical condition.
● It is a personal economic condition. If there are more than one indigent person suing,
their indigency is considered collectively.
● At the death of the indigent person, his legal representatives have to prove their indigency
and cannot claim that of their predecessor. (Chayamani Tripathy v. Dharmananda Panda)
● Dispute of payment of court fees is one between the appellant and the State, not between
the parties to the case.
● Rule 1A of Order XXXIII states that the Chief Ministerial Officer of the court has the
authority to do an inquiry. The inquiry is conducted in the first instance to know if an
applicant is an indigent person or not. It is upon the discretion of the court whether to
accept the report submitted by such an officer or make an inquiry.
● Financial assistance received from family members and close friends may be considered
to determine whether a person is indigent.
● Rule 2: i.e., The application must include the particulars similar to what is mentioned in
the plaint and all movable or immovable properties of the indigent person/applicant along
with its estimated value.
● Rule 3: The indigent person/applicant shall himself in person present the application
before the court. In case, such a person is exempted from appearing in the court, an
authorized agent may present the application on his behalf. In certain circumstances
where there are two or more plaintiffs, the application can be presented by any of them.
● Rule 4: The suit begins as soon as the application to sue as an indigent person is duly
presented before the court. Subsequently, the indigent person/applicant is examined by
the court. However, if the applicant is being represented by his agent, then in such a case,
the court may examine the applicant by the commission
● As per Rule 5 of Order XXXIII of CPC, the court will prima facie reject an application
seeking permission to sue as an indigent person in the following cases:-
1. In case when the application is not framed and presented in the prescribed manner.
Here, the term ‘prescribed manner’ implies that the application must abide by Rule 2
and Rule 3 of Order XXXIII. Rule 2 and Rule 3 deal with the contents of the
application and its presentation respectively.
2. The application can be rejected by the court in case the applicant is not an indigent
person.
3. The application can be rejected by the court when the applicant has fraudulently
disposed of any property within two months before the presentation of the application.
It can also be rejected when the applicant dishonestly applies only with the motive of
just seeking permission from the court to sue as an indigent person.
4. The court possesses the power to reject the application filed by an indigent person in
an instance where there is no cause of action.
 5. In case, where the applicant has entered into an agreement with any third party and
such agreement pertains to the subject matter of the suit wherein the other party (other
than the applicant) obtains interest, then, it is one of the reasons for rejection of the
application. It shows the applicant’s intention to defraud the court.
6. Rejection of application is done when the allegations indicate that the suit is barred by
any law.
7. Rejection of application is done in cases where any other individual enters into an
agreement with the applicant to help him financially in the litigation.
● The Hon’ble Supreme Court in ML Sethi v. RP Kapoor observed that the provisions of
Order XI Rule 12 involving the discovery of documents would apply to proceedings
under Order XXXIII of the Code of Civil Procedure.
● In Dhanalakshmi v. Saraswathy case, the plaint was found to be undervalued. So, it
was returned for presentation in the court along with proper valuation and court fee. A
time of one month was granted for doing so and the plaintiff filed the plaint within the
stipulated period. Subsequently, the plaint was presented in the Sub-Court along with
a petition seeking leave to sue as indigent persons to which the court observed that
though the petition was filed under Order XXXIII Rule 1, one cannot say that the
application filed under Rule 2 seeking permission to file the suit as indigent persons
might not be rejected as provided in Rule 5 of Order XXXIII CPC. A similarity was
drawn between Order XXXIII Rule 5 CPC and Order VII Rule 11 CPC. While Order
VII Rule 11 is used in the rejection of plaint, Order XXXIII Rule 5 deals with the
rejection of an application filed for permission to sue as indigent persons.
● Order XXXIII Rule 6 provides that the court is required to issue a notice to both the
opposite party and the Government pleader. Following which a day is fixed on which
evidence is received. On such a day, the applicant presents in the form of proof about his
indigency. The opposite party or the Government Pleader can present their evidence
opposing the applicant’s indigency.
● Order XXXIII Rule 7 provides for the procedure to be followed at hearing of the
application. The court shall examine the witnesses (if any), produced by both the parties
and hear arguments on the application or evidence (if any) admitted by the court.
Subsequently, the court will either allow the application or reject it.
● Order XXXIII Rule 8 explains the procedure to be followed after the admission of the
application. The application after being admitted has to be numbered as well as
registered. Such an application will be considered as a plaint in a suit. Subsequently, such
a suit shall proceed in the same manner as an ordinary suit does. But, the plaintiff is not
required to pay any court fee.
● Order XXXIII Rule 9 states that the court has an option to revoke the permission granted
to the plaintiff to sue as an indigent person. The court can utilise this discretionary power
on receiving the application by the defendant or by the government pleader, in the
following circumstances:
1. Where the applicant is guilty of vexatious or improper conduct in the course of the
suit; or
2. Where the applicant’s means are such that he will not continue to sue as an indigent
person; or
3. Where the applicant has entered into an agreement under which another person has
obtained an interest in the subject matter of the suit.
● The Kerala High Court in R. Jayaraja Menon v. Dr. Rajakrishnan And Anr., while
deciding upon an application concerning the withdrawal of permission to sue as an
indigent person observed that Rule 9 of Order XXXIII provides for a situation where the
plaintiff, who was initially permitted to sue as an indigent person, ceases to be an
indigent person after the suit is filed. In case a plaintiff ceases to be an indigent person,
the court shall compel him to pay the court fee that he would have paid if he had not been
allowed to sue as an indigent person. It is so plainly a part of an order under Rule 9 of
Code directing the plaintiff to pay the court fee that he would have paid if he had not
been allowed to file as an indigent person from the outset.
● Rule 9A of the Code provides that the court will assist the indigent person by assigning
him a pleader. A pleader is a person who is entitled to appear and plead on behalf of other
persons in the court.
● Rule 10 Costs where indigent person succeeds:
Where the indigent person succeeds the plaintiff succeeds in the suit,according to rule 10
if the plaintiff is allowed to sue an indigent person, the court will calculate the amount of
court fees and cost. The plaintiff will then have to pay this amount as if they were not
permitted to sue an indigent person.if plaintiff fails to pay the amount to any party
ordered by the decree may recover it.
● Rule 11. Procedure where indigent person fails :if the plaintiff's case is dismissed or
withdrawn, or if the court orders that he is not allowed to be sued as an indigent person
as a result of the plaintiff's failure to pay the court fee or any applicable postal costs for
such delivery or to provide copies of the plaint or short statement, the defendant has not
received the summons to appear and respond. If the plaintiff fails to appear for the due
hearing in the suit.The plaintiff or anyone added as a co-plaintiff to the claim will be
ordered by the court to pay the court costs that he would have incurred if he had not been
allowed to file the lawsuit as an indigent person.
● Rule 11A. Procedure where An indigent person suit abates: In the event that the plaintiff
or any additional plaintiff passes away before the suit is resolved, the court will order that
the State Government may collect the costs of the lawsuit from the estate of the deceased
plaintiff. This includes the amount of court fees that the plaintiff would have had to pay
had he not been allowed to file as an indigent person.
● Rule 12. State Government may apply for payment of court-fees: At any time, the State
Government] may request that the Court issue an order directing the payment of court
costs in accordance with rules 10, 11 or 11A.
● Rule 13. State Government to be deemed a party: Section 47 will be applied to all
questions that arise between the parties to the suit in relation to any subject between the
State Government and any party under rule 10, rule 11, rule 11A or rule 12.
● Rule 14. Recovery of amount of court-fees: In cases where a court orders something
under rules 10, 11, or 11A, the court must promptly cause a copy of the decree or order to
be sent to the collector. The collector may then, in addition to any other available means
of recovery, recover the court fees specified in the order from the person or property that
is responsible for the payment, treating it as if it were an arrear of land revenue.
 ● Rule 15: Refusal to allow applicant to sue as an an indigent person to bar subsequent
application of like nature The applicant will not be permitted to file a similar application
for the same right to sue in the future; nevertheless, he may still start a suit in the usual
way for the purpose of exercising that right in the event that the order prohibits him from
filing as an indigent person.
● Stipulated that the plaint will be dismissed if he fails to pay the costs if any incurred by
the opposing party and the State Government in opposing his request for permission to
file a lawsuit as a indigent person, either at the time the suit is instituted or at any later
date the Court deems appropriate.
● Rule 15A. Grant of time for payment of court-fee: If a court rejects an application under
rule 5 or refuses an application under rule 7, it may, in its discretion, grant the applicant
additional time to pay the required court fee within a specified time frame. Once the
applicant pays the required court fee and pays the costs mentioned in rule 15 within that
time frame, the suit will be considered to have been instituted on the date the application
for consent to sue as an indigent person was submitted.
● Rule 16. Costs: cost associated with the suit shall include the costs of an investigation
into indecency and an application for permission to sue as an indigent person.
● Rule 17. Defence by an indigent person: If a defendant wants to present a counterclaim or
set-off, they can do so as an impoverished person. In such a case, the guidelines in this
order will apply to them in the same way as they would a plaintiff, and their written
declaration will serve as a plaint.
● Rule 18. Power of Government to provide for free legal services to indigent persons: -
(1) The Central or State Government may, subject to the terms of this Order, enact any further
laws that it deems necessary to guarantee free legal representation to individuals who have been
granted the right to file a lawsuit on the grounds of indigency.
2) The High Court may establish rules for implementing the additional provisions made by the
Central or State Government for giving free legal services to the impoverished individuals
mentioned in sub-rule (1), provided that the State Government has previously given its approval.
These rules may address the type and scope of such services, the circumstances in which they
may be provided, the subjects of which they may be rendered, and the organizations that may
provide them.
● Order 43 provides the list of court orders from which appeals lie. Order 43 Rule 1 (na)
An order rejecting an application to sue as an indigent person is appealable.
● Order 44 Rule 1 provides that, a person who is unable to pay the court fee required for
the memorandum of appeal (i.e., grounds of appeal) may apply to appeal as an indigent
person. The inquiry as prescribed under Order XXIII will be made before granting or
refusing the prayer. However, in the case where the appellant was allowed to sue as an
indigent person before the trial court, no fresh inquiry shall he needed if he files an
affidavit that he continues to be an indigent person.
● According to Order 44 Rule 2, where an application is rejected under Rule 1, the Court
may allow time for the applicant to pay the requisite court-fee within a fixed time and
may also extend the deadline. If the requisite court-fee is paid within the stipulated time,
then the memorandum of appeal would have the same force as if the court-fee had been
paid in the first instance.
● According to Order 44 Rule 3, inquiry shall not be made by the Appellate Court so as to
determine whether the applicant is an indigent person if the applicant files an affidavit
that he remains as an indigent person since the date of the decree appealed from. but if
the Government Pleader or the respondent disputes the truth of the statement made in
such affidavit, an inquiry into the question aforesaid shall be held by the Appellate Court,
or, under the orders of the Appellate Court, by an officer of that Court.
● Where the applicant, referred to in rule 11, is alleged to have become an indigent person
since the date of the decree appealed from, the inquiry into the question whether or not he
is an indigent person shall be made by the Appellate Court or, under the orders of the
Appellate Court, by an officer of that Court unless the Appellate Court considers it
necessary in the circumstances of the case that the inquiry should be held by the Court
from whose decision the appeal is preferred.
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