CODE OF CIVIL PROCEDURE

SUITS BY INDIGENT PERSON (ORDER 33 CPC)

INTRODUCTION
Taking into consideration the poverty rate of India, it is quite challenging for the deprived section of society
to institute a case in court and bear all the litigation expenses. But simply saying that these vulnerable people
don’t stand a chance in court, is not the solution. One such solution is enshrined under Article 39A of the
Indian Constitution that protects the interests of vulnerable segments of society. It provides free legal aid to
the poor and weaker sections of society and ensures justice for all. Besides Article 39A, Articles 14 and 22 (1)
of the Indian Constitution provide that it is obligatory on the part of the State to ensure equality before the law
and provide a legal system that aims at promoting justice.

MEANING
The dictionary meaning of the word ‘indigent person’ refers to a person who is suffering from extreme
poverty, impoverishment, or one who lacks the basic resources required in normal life. In legal parlance, an
indigent person does not possess the financial capacity to pay the court fee. With the motive of providing
justice to such individuals, provisions under Order 33 of the Code of Civil Procedure, 1908 were introduced.
Any person who wants to represent as an indigent person is required to file an application before the
competent court wherein he declares himself to be an indigent person. 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. Primarily, before the introduction of the expression “indigent
person”, the term “pauper” was used to denote the underprivileged section of society.
However, the latter got substituted by the term “indigent person.”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

OBJECT:
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

WHO IS AN INDIGENT PERSON?

As soon as a civil suit is filed in the court, the plaintiff(s), at the time of filing their plaint, are required to
submit the requisite court fees as directed by the Court Fees Act, 1870. However, Order XXXIII of the Code
of Civil Procedure saves indigent persons by way of discharging them from the liability to pay the required
court fees. It then allows such individuals to institute the suit in forma pauperis which is subject to some
conditions as postulated under the Rule 1 of Order XXXIII of CPC.

Union Bank of India v. Khader International Construction

The Hon’ble Supreme Court in Union Bank of India v. Khader International Construction discussed the
definition of an indigent person. It was observed by the court that an indigent person is one who is not
possessed of sufficient amount (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 plaintiff in such a suit. In case
no such fee is prescribed if such person 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 he would be an
indigent person.

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Legal representative as an indigent
In Lakshmi v Vijaya Bank, 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. However, the high court admitted the application filed by the legal representative and
allowed them to file the petition as indigent persons.

Inquiry into the means of an indigent person

Rule 1A of Order 33 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.

Rejection of application
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:
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.
The application can be rejected by the court in case the applicant is not an indigent person.
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.

The court possesses the power to reject the application filed by an indigent person in an instance where there
is no cause of action. 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.

Rejection of application is done when the allegations indicate that the suit is barred by any law.
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 11 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.

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Order 33 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 33 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 33 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.

Order 33 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:
Where the applicant is guilty of vexatious or improper conduct in the course of the suit; or
Where the applicant’s means are such that he will not continue to sue as an indigent person; or
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 33 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.

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.

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]

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