This article is written by Almana Singh. It deals with an in-depth analysis of Order 33 of the Code of Civil Procedure, 1908 which provides a procedure for indigent persons to file a lawsuit without paying court fees. The article also contains relevant illustrations and recent case laws for better interpretation and understanding of Order 33.
Table of Contents
Introduction
In a just and equitable society, access to legal remedies should not be restricted by one’s financial resources. The principle of equality is the soul of the Constitution of India. It affirms the principle that every person should have an equal opportunity to pursue justice, regardless of their economic conditions. In line with these principles, Order 33 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC, 1908”) provides a mechanism for individuals who are unable to afford the costs of a lawsuit. It allows individuals to sue without bearing the court fees and ensures that financial hardships do not prevent anyone from seeking justice.
This article is written with an aim to simplify the meaning of indigent person for the readers and to interpret the provisions of Order 33 of CPC, 1908 for a better and a thorough understanding of the benefits granted to such indigent individuals.
Who is an “indigent person”
Before we explore the procedure of filing an application as an indigent person, it is essential to address the question of who qualifies as an indigent person.
The dictionary meaning of the word “indigent” is someone who is suffering from extreme poverty. The legal meaning of this term is given in Explanation 1 attached with Rule 1 of Order 33 and it defines “Indigent person” as follows:
- Someone who does not have sufficient means or enough financial resources (excluding any property that is exempt from being seized in the execution of a decree and subject matter of a lawsuit) to pay the required court fees for filing a lawsuit will be considered an indigent person.
- It also states that if there is no specific fee, a person is considered indigent when their total property excluding any assets protected from being seized and the property related to the lawsuit, is worth less than Rs. 1000.
Illustration
Suppose, A is a daily wage worker and wants to file a lawsuit against his employer for wrongful termination. The court requires a filing fee of Rs. 2000 for the lawsuit. However, A’s only possessions are his house which is exempted from attachment under the law and a few personal items worth less than Rs. 1000. Consider the following scenarios to understand the applicability of Explanation 1 to Rule 1.
Scenario 1: A has no other property or savings that can be used to pay the court fee of Rs. 2000. Since the value of the non-exempt property is insufficient to cover the filing fee, A will be considered as an indigent person under Order 33 of CPC.
Scenario 2: If the court did not require a specific filing fee for A’s lawsuit, but A’s total property, excluding exempt assets, is only worth Rs. 900, he would still be considered an indigent person. This is because the value of his property is less than Rs. 1000 and meets the threshold for indigency.
Under both cases, A can apply to sue as an indigent person under Order 33 of CPC, 1908, and he would not have to pay the court fees upfront.
Meaning of the term “sufficient means”
The definition of term “indigent person” under Explanation 1 of Rule 1 states that “if a person is not possessed of sufficient means to enable him to pay prescribed court fees”. The interpretation of the term “sufficient means” was discussed in detail by the Supreme Court of India.
Mathai M. Paikedy vs. C.K. Antony (2011)
The issue before the Supreme Court in the case of Mathai M. Paikedy vs. C.K. Antony (2011) was the interpretation of the term “sufficient means”. The facts and the observations of the Supreme Court in this case have been briefed below.
Facts
The appellant filed two suits for the recovery of money against the respondent who was a retired Deputy Conservator of Forest drawing a pension of Rs. 10,500. These suits were decreed in favour of the appellant. Aggrieved with the outcome, the respondent filed an appeal before the High Court of Kerala and sought to prosecute these appeals as an indigent person under Order 33 of Rule 1 of the CPC, 1908. Initially, the High Court of Kerala allowed the respondent to proceed as an indigent person without conducting the mandatory inquiry as required under Order 33 Rule 1A of CPC, 1908. This decision was challenged by the appellant and the Supreme Court of India remanded the case back to the High Court for a proper inquiry. After the inquiry was conducted, the High Court once again permitted the respondent to prosecute the appeals as an indigent person and this led the appellant to file an appeal in the Supreme Court.
Arguments
The appellant argued that the respondent received a pension of Rs. 10,500 and possibly additional financial support from his son who was employed abroad. The respondent had sufficient means to pay the court fees. The respondent’s failure to produce his bank passbooks was argued to be an attempt to hide the financial support received by the son. The appellant claimed that these circumstances showed that the respondent was not entitled to proceed as an indigent person.
The respondent asserted that his pension and any money received from the son were insufficient to cover the court fees. He also emphasised that his son did not regularly send him money, and the amount received was not substantial.
Judgement
The Court clarified that “sufficient means” refers to a person’s ability to raise money through lawful means to pay court fees. Factors such as employment status, total income (including pensions), ownership of assets, indebtedness, and financial assistance from family should be considered in determining if a person has “sufficient means”.
The Supreme Court found that the respondent’s pension and potential financial support from his son constituted sufficient means to pay the court fees. The respondent’s failure to disclose his bank details was viewed as suppression of facts. The High Court’s decision was set aside and the respondent was disallowed from proceeding the case as an indigent person and he was given 45 days to submit the court fees.
Juristic person as an indigent under Order 33
The question now arises whether a juristic person can be considered as an indigent person. This issue was discussed in the below-mentioned case.
Union Bank of India vs. Khader International Construction (2001)
In the case of Union Bank of India vs. Khader International Construction (2001), the issue of whether a juristic person can be considered an indigent person was examined. The facts, arguments advanced and the judgement pronounced by the Hon’ble Supreme Court are discussed below.
Facts
The first respondent, a public company filed a suit in the Sub-Court, Kochi, seeking permission to sue as an indigent person under Order 33 Rule 1 of the CPC, 1908. The appellant objected, arguing that the term “person” in Order 33 Rule 1 refers only to natural persons and not to juristic persons like companies. The Sub-Court allowed the respondent to sue as an indigent person. The appellant’s subsequent appeal to the High Court of Kerala was dismissed. Aggrieved by the High Court’s judgement, the appellant brought the appeal before the Supreme Court of India.
Arguments
The appellants argued that the provisions of Order 33, Rule 3 in particular, require the applicant to present the application in person and answer material questions, implying that only natural persons can be indigent persons. They also contended that the use of terms like “wearing apparel” in the pre-1976 version of the law indicated a focus on natural persons.
The respondents argued that Order 33 is a provision designated to assist those unable to pay court fees, regardless of whether they are natural or juristic persons. The respondent cited several judgements from various High Courts that supported the view that juristic persons could sue as indigent persons.
Judgement
The Supreme Court opined that the term “person” in Order 33 Rule 1 should be interpreted broadly to include juristic persons. The argument that procedural requirements under Rule 3 exclude juristic persons was rejected and it was noted that a representative or authorised agent could fulfil these obligations for the company. The court emphasised that Order 33 should be liberally interpreted to achieve its objective of facilitating access to justice for those unable to pay court fees. The appeal was dismissed while holding that a public limited company is entitled to sue as an indigent person under Order 33 Rule 1 of CPC, 1908. The word “person” in this context includes both natural and juristic persons.
After thoroughly understanding who can qualify as an indigent person under Order 33. Let’s understand the procedure of filing an application as an indigent person.
Order 33 of CPC, 1908
Order 33 of CPC, 1908 addresses “Suits by Indigent Persons”. Earlier, this Order was titled “Suits by Paupers” but it was substituted by Act 104 of 1976 which was made effective from 01 February 1977. Before the introduction of the term “indigent person”, the widely known term to denote an underprivileged section of society was “pauper”.
Order 33 of CPC, 1908 comprises 18 rules and each of them along with relevant illustrations have been discussed below in detail.
Suits may be instituted by Indigent person (Rule 1)
Rule 1 states that an indigent person has the right to initiate any legal suit keeping in mind the provisions given under this Order. Rule 1 of Order 33 also has 3 explanations attached to it. All of which have been explained below.
Explanation 1 to Rule 1
Explanation 1 deals with the definition of an indigent person which has already been dealt with in the earlier sections of this article.
Explanation 2 to Rule 1
Explanation 2 to Rule 1 of Order 33 states that any property that a person acquires after submitting an application to sue as an indigent person but before the court decides on that application will be considered in determining whether the applicant qualifies as indigent.
Illustration
Suppose, after ‘A’ filed his application to sue as an indigent person, ‘A’ receives an unexpected inheritance from a distant relative. This inheritance includes a small plot of land worth Rs. 50,000. The court has not yet made a decision on whether ‘A’ qualifies as an indigent person. In accordance with Explanation 2, since ‘A’ acquired the plot after the submission of his application but before the court made a decision, the value of this land must now be considered when determining his indigency status. Although ‘A’ was initially indigent, the new property may disqualify him from being recognised as such because it significantly increases his financial means.
Explanation 3 to Rule 1
Explanation 3 to Rule 1 of Order 33 states that if a plaintiff is suing in a representative capacity, the assessment of whether they are indigent will be based on the resources available to them in that representative role.
Illustration
Suppose, ‘A’ is representing a group of workers who were wrongfully terminated by the employer. ‘A’ files a lawsuit as representative of the whole group and not just himself. Here, the court must assess whether the group as a whole and not just ‘A’ qualifies as an indigent person in accordance with Explanations 1 and 2 attached to Rule 1. There is a possibility ‘A’, individually, has very little money and would qualify as indigent. However, if the group of workers he represents collectively owns property or has financial resources that are sufficient to cover the court fees, then ‘A’ in his representative role may not be considered an indigent person and would not be able to file an application under Order 33. The court will evaluate the financial means of the group he represents and not just his personal financial situation.
Whether a person is indigent or not (Rule 1-A)
Rule 1-A states that the initial investigation into the alleged indigency of a person is carried out by the chief administrative officer of the court. However, it is up to the discretion of the court and it might choose to handle the investigation differently. The court can either accept the officer’s findings as its own or decide to conduct the inquiries on its own.
Contents of application (Rule 2)
It states that every application for permission to sue as an indigent person should contain the following particulars:
- The details required in regards to plaints and suits;
- A list of any moveable or immoveable property owned by the applicant with the estimated value
- Signature and verification in accordance with the provisions of Order 6 Rule 14 and 15.
Presentation of application (Rule 3)
Regardless of any other rules, the application must be submitted to the court by the applicant personally. If the applicant is exempt from appearing in court, an authorised representative may submit the application instead. This representative must be able to answer all significant questions about the applications and can be examined as if the applicant had attended in person.
There is a proviso attached to Rule 3 which states that if there are multiple plaintiffs, it is acceptable for just one plaintiff to present the application.
The commencement of the suit occurs at the exact moment an application to sue as an indigent person is presented. This was established in the case of Jugal Kishore vs. Dhano Devi (1973).
Jugal Kishore vs. Dhano Devi (1973)
The facts and the judgement pronounced by the Hon’ble Supreme Court of India in Jugal Kishore vs. Dhano Devi (1973) have been briefed below.
Facts
This case involved a legal dispute over the ownership of a house in Kanpur. The plaintiff, Dhanoo Devi, claimed to be the rightful heir to the property after her father, Budhu Lal and mother Jumma Devi passed away. Dhanno Devi attempted to file a suit to claim possession of the disputed property but lacked the financial resources to pay the required court fees. On 02 January 1948, she applied for permission to sue as a pauper under Order 33, Rules 2 and 3 of the CPC, 1908.
The defendants contested her claim and argued that Dhanno Devi was not the daughter of Budhu Lal and this suit was barred by limitation. The trial court ruled in favour of Dhanno Devi. Later, an appeal was filed in the High Court of Allahabad and the High Court upheld the Trial Court’s decision. Aggrieved by the judgement, the defendants then appealed in the Supreme Court of India.
Decision
The Supreme Court of India reaffirmed the principle that a suit is deemed to be instituted from the moment an application for permission to sue as an indigent person is presented to the court, provided it contains all the necessary particulars that are required for a plaint. The Court clarified that even if the application to sue as an indigent person is withdrawn or dismissed, the suit itself remains valid from the date of the original application. When such an application is presented, it is considered as institution of the suit.
Therefore, Dhanno Devi’s suit was deemed properly instituted on 02 January 1948, on the day when her application was filed. Initially, the Supreme Court dismissed Dhanno Devi’s application to sue as an indigent person when she failed to pay court fees by the set deadline but the proceedings were later restored after she made the necessary payments.
The Supreme Court held that the suit remained valid, as the court fees was eventually paid and the suit in question should be treated as filed on 02 January 1948. As for the defendant’s arguments relating to the limitation period, the court dismissed their claims and ruled that the suit was within the limitation period.
Examination of the applicant (Rule 4)
Rule 4 states that when an application is in a correct format and has been properly submitted, the court can apply its discretion to examine the applicant or if the applicant is permitted to appear through an agent, the court has the discretion to examine the agent too. This said examination can address both the merits of the claim and the applicant’s financial situation.
If the application is submitted by an agent, the court may choose to have the applicant examined via a commission. This is similar to how an absent witness would be examined.
Illustration
Suppose, Mr. A is unable to afford the court fees and he files an application to proceed with the suit as an indigent person. However, Mr. A is not able to attend the court personally due to his health issues. Therefore, an application was submitted on behalf of Mr. A through his legal agent.
The court will first review the application to ensure that it is properly filled out and meets all the necessary requirements. If everything appears to be in order, the court may decide to question Mr. A or his legal agent about the claims made in the plaint and the financial conditions of Mr. A. This is done to assess whether Mr. A lacks the financial means to pay the court fees and is eligible to file a case under Order 33.
Due to the health issues Mr. A was facing, he was unable to join the court personally. In this case, the court might order that his examination be conducted by a commission. This means that instead of appearing in person, Mr. A’s testimony could be recorded by a designated officer. This is similar to how testimony is taken from a witness who cannot attend court.
Rejection of application (Rule 5)
Rule 5 states the situations where an application for permission to sue as an indigent person is rejected. It has 7 situations, all of which have been briefed below.
Not framed or presented in accordance with Rules 2 and 3
Clause (a) of Rule 5 states that if an application for permission to sue as an indigent person does not follow the specific format and content requirements provided in Rules 2 and 3, the court has to reject it. These rules generally require a piece of detailed information about the applicant’s financial status along with the ownership of property and the specifics of the claim.
Suppose, ‘A’ filed an application seeking permission to sue as an indigent person. However, he fails to include critical details like his income, assets, and the nature of his claim in accordance with Rule 2 and 3. In this scenario, A’s application does not meet the requirement and the court can reject it.
Applicant is not an indigent person
Clause (b) of Rule 5 states that if it turns out that the applicant is not truly indigent that means they have sufficient financial means to pay court fees. The court in such a case will reject the application. This is done to ensure that only genuinely financially unable individuals receive the benefits enshrined in Order 33.
Suppose, A applies to sue as an indigent person and claims that she cannot afford court fees. On investigation, it was revealed that she owns a successful business and has substantial assets. Since A has the means to pay court fees, her application was rejected by the court.
Fraudulent disposal of property
Clause (c) states that if an applicant has sold or transferred property in a deceptive manner within two months before filing an application under Order 33 to be recognised as an indigent person, the court will reject the application. However, if the applicant’s financial situation still meets the criteria for indigency after keeping into account the disposed property, the application will not be dismissed.
Suppose, A applies to sue an indigent person. It was discovered that just before filing his application, A sold a piece of valuable land to a relative for a minimal amount. This sale was done to make himself appear financially incapable of being able to pay court fees. However, later when his assets were evaluated, it was determined that A still qualified as a financially incapable individual and was eligible to file an application under Order 33 of CPC, 1908. A’s application will not be rejected even though he had disposed of his property with fraudulent intentions.
Allegations do not show a cause of action
Clause (d) states that if the application does not provide sufficient grounds or allegations to establish a valid legal claim, it will be rejected. The applicant must show that their case has a legitimate basis to proceed.
Agreement leading to another person obtaining an interest in the subject matter
Clause (e) states that if the applicant has entered into an agreement where someone else gains interest in the subject matter of the proposed suit, the application will be rejected. This is done to prevent situations where the litigation is essentially being financed or controlled by another party.
Suppose, A filed an application under Order 33 and it was later discovered that A had entered into an agreement with a third party who had a stake in the outcome of the case. A’s application was rejected as it involved an external party.
Suit might be barred by law
Clause (f) states that if the application reveals that the proposed suit would be barred by the existing laws or legal limitations, it will be rejected. This is done to ensure that only cases with valid standing proceed in the court of law.
Suppose, A applies to sue as an indigent person. His application reveals that the claim is time-barred under the provisions of limitations. Because the suit cannot proceed legally due to this bar, his application will be rejected.
Agreement to finance the litigation
Clause (g) states that if the applicant has an agreement with someone else to finance the litigation, the application will be rejected. Suppose, A files an application under Order 33 and simultaneously has an agreement with a third party who will be financing her litigation. Applications of such nature are rejected.
Scheduling of hearing for evidence (Rule 6)
If the court finds no valid grounds to reject the application of an indigent person in accordance with Rule 5, it will set a specific date to hear evidence in regard to the applicant’s financial status. It may be noted that the opposing party and the Government pleader must be given a clear notice at least 10 days before this hearing. On this scheduled date, the court will consider the evidence presented by the indigent person to prove their indigency and as any evidence from the opposing counsel to refute it.
Illustration
Suppose, A files an application under Order 33 claiming that he does not have sufficient means to pay the court fees. The court first reviews his application in accordance with Rule 5 and finds that there exists no immediate reason to reject the application in question. Next, the court sets a hearing date and it is ensured that the opposing party or the government pleader are notified of the date at least 10 days in advance.
On the scheduled day, A presents evidence like bank statements or employment records to prove that he lacks sufficient financial means. The opposing counsel might present their evidence to refute A’s claims possibly arguing that A has hidden assets and undisclosed sources of income. All this evidence will be considered while deciding whether A qualifies as an indigent person.
Procedure of hearing (Rule 7)
On the day when the hearing is scheduled, the court will hear witnesses presented from either side and may also question the applicant or their representative, while ensuring that a complete record of their testimony is kept
It may be noted that the questioning of witnesses is limited to matters outlined in Clause (b), (c), and (e) of Rule 5, but the applicant can be questioned on any matter specified under the provisions of Rule 5.
The court will consider any arguments presented by the parties whether based on the application under Order 33 or the evidence gathered by the court under Rule 6 or 7, the applicant falls under any of the restrictions given under Rule 5.
Based on the evidence produced and arguments advanced, the court will make a decision whether to permit the applicant to proceed as an indigent person or not.
Procedure, if the application is admitted (Rule 8)
Rule 8 states the procedure when the application is admitted by the court, it says that the application will be assigned a case number and registered effectively becoming the plaint in the lawsuit. The case will then proceed as if it was filed in the usual way but with the exception that the plaintiff will not be required to pay any court fees or any fees for the service of process related to any petitions, pleader appointments or other proceedings which are associated with the case.
Procedure, if the application is withdrawn (Rule 9)
The court, upon a request from the defendant or the government pleader, keeping in mind that the plaintiff has been given 7 days written notice, has the authority to revoke the permission of the plaintiff to proceed as an indigent person under Order 33. There are 3 situations given under Rule 9,
- The plaintiff engages in vexatious or improper behaviour during the case;
- It is determined that the plaintiff’s financial situation no longer justifies indigent status;
- The plaintiff has made an agreement in regard to the subject matter of the suit that grants another person an interest in it.
Assignment of a pleader to an unrepresented indigent person (Rule 9A)
Sub-rule (1) states that if a person allowed to sue as an indigent individual does not have a legal representative, the court may appoint a pleader for them if required.
Sub-rule (2) states that the high court with a prior approval from the state government, may establish rules in this regard;
- The mode of assignment of pleaders under the Sub-rule (1)
- The kind of facilities that will be provided to these pleaders by the court
- Any other additional matters necessary to implement the provisions of Sub-rule (1)
If the indigent applicant succeeds in the lawsuit (Rule 10)
Rule 10 states that if the indigent plaintiff wins the lawsuit, the court will calculate the amount of court fees that would have been paid if they had not been exempted. This amount becomes recoverable by the state government from the plaintiff who is ordered by decree to pay it.
This amount becomes a first charge on the subject matter of the suit. This means that the state government has the first right to recover the court fees from any property or assets involved in the case. This is to ensure that court fees is paid before any other claims are settled.
Procedure, if the indigent person fails (Rule 11)
This rule addresses the steps the court takes, in case an applicant who has been granted permission to sue as an indigent person either loses the case, ends up getting their permission revoked or if the case is withdrawn or dismissed.
- Plaintiff fails in the suit: If the plaintiff loses the lawsuit, they no longer benefit from their indigent status and have to now pay the court fees that were initially waived.
- Withdrawal of permission: If the court revokes the plaintiff’s permission to sue as an indigent person under Order 33, the plaintiff is required to pay court fees that was previously exempted.
- Suit withdrawn or dismissed: If the case is withdrawn or dismissed in situations when the summons (a document that notifies the defendant of the lawsuit) were not served to the defendant because the plaintiff failed to pay the required court or postal fees. This rule also covers the case where the plaintiff did not present necessary documents like copies of the plaint or a concise statement required for the case to proceed.
In such situations, the court will order the plaintiff to pay court fees and they would have paid if they had not been granted the status of an indigent person.
Procedure where an indigent person’s suit abates (Rule 11A)
This rule deals with what happens to the court fees if the lawsuit filed by an indigent person is halted due to their death or the death of a co-plaintiff. A suit “abates” when it is terminated or discontinued often due to the death of the party.
In cases where a lawsuit filed by an indigent person ends due to the death of the plaintiff or co-plaintiff, the court will make sure that the court fees which was initially waived due to the indigence, is recovered from the estate of the deceased. In simpler words, the estate of the deceased now bears the responsibility to pay the court fees. The state government can recover the fees from the assets or property which was left behind by the deceased. This is done to ensure that financial obligation is eventually met.
Suppose, A was too poor to pay court fees and he filed a lawsuit. The court allowed the suit without fees because A was indigent. However, A passed away while the case was ongoing. In this situation, the case stops (the suit abates). Since the plaintiff did not pay the court fees, the government can now claim the same from the deceased’s assets and property.
The state government can apply for payment (Rule 12)
Rule 12 states that the state government has the authority to request the court at any moment to issue an order for payment of court fees under the provisions of Rule 10, Rule 11 or Rule 11A.
This gives the state a right to recover any court fees that should have been paid, in accordance with the specified rules, even in the cases where a person was initially allowed to sue as an indigent person.
If the state government is involved in the dispute (Rule 13)
Rule 13 states that when issues or disputes arise involving the state government in the context of an indigent person’s suit, these issues are treated as part of the main suit for the purpose of resolving them. This means that any matter involving state government in the context of rules related to indigent suits like Rules 10, 11, 11A, or 12 will be considered as a matter between the parties involved in the suit itself, as defined under Section 47 of CPC, 1908.
Recovery of court fees (Rule 14)
Rule 14 states the procedure for recovering unpaid court fees when an indigent person loses their suit, their permission to sue is withdrawn, or if the suit abates due to their death.
When the court decides that the plaintiff (or their estate) must pay the court fees under Rules 10,11, or 11A, it sends a copy of its order or decree to the collector. The collector is then responsible for recovering the court fees from the person or property responsible.
This recovery process is similar to collecting unpaid land revenue. This means that the court fees is treated as debt owed to the government and can be pursued through official collection methods.
Restriction on subsequent applications for indigent status (Rule 15)
Rule 15 states that if a court denies a person’s request to sue as an indigent person, this denial prevents them from making another similar request for the same legal claim in the future. Once refused, the person cannot reapply for indigent status for that particular case. Even though the request for indigent status was denied, the person can still pursue their lawsuit through the usual process. They will have to adhere to all the court fees and standard legal procedures.
If the person chooses to proceed with the suit using the regular process, they are responsible for paying the costs associated with their initial request for indigent status. This includes any expenses that the state government and opposing parties incurred in opposing the request. If a person fails to pay these costs either at the time of filing the suit or within a period granted by the court, the case will be dismissed.
Extension for court fee payments (Rule 15A)
Even if a court rejects or refuses an application to sue as an indigent person under Rule 5 or Rule 7, it can still allow the applicant an extension to pay the required court fees. The court can set or extend the deadline as needed.
If the applicant pays the court fees and any related costs as given in Rule 14 within the granted time, the lawsuit will be considered as having started on the date when the original application for the indigent status was filed.
Cost of indigency application (Rule 16)
The expenses associated with applying for permission to sue as an indigent person and those incurred during the inquiry into the applicant’s financial status shall be treated as part of the overall costs of the lawsuit.
Defence by an indigent person (Rule 17)
A defendant in a lawsuit who wants to make a set-off or counterclaim can request to do so as an indigent person. The same rules that apply to plaintiffs who are permitted to sue as an indigent person also apply to defendants. These rules cover the procedures and conditions under which they can make their claims without paying the usual court fees. For this purpose, the defendant’s written statements (which outline their counterclaim) are treated as plaint.
Power of government to provide free legal services (Rule 18)
Both the central and state governments have the authority to establish any additional measures to offer free legal services to individuals permitted to sue as indigent persons. This means they can create supplementary systems which ensure that indigent individuals receive legal assistance without any charge.
The High Court, with prior approval of the state government, can formulate to implement the supplementary provisions set by the central or state governments. These rules can specify:
- The types and scope of legal services being provided
- The conditions under which these services are available
- The matters for which services are provided and the agencies responsible for delivering them
Rule 18 allows for the involvement of governments and high courts to ensure that indigent people receive the necessary legal services.
Appeals by an indigent person
After understanding the meaning of indigent person and the process of filing an application as an indigent person. The issue now arises is what is the effect of appeals filed by an indigent person.
Appeals made by indigent people are covered under Order 44 of CPC, 1908. It states that if someone cannot afford the court fees for an appeal, they can request permission to proceed as an indigent person. Before deciding whether to grant or deny this request, the court will conduct the necessary inquiry as stated in the provisions of Order 33 of CPC, 1908. However, if the appellant was previously permitted to sue as an indigent person in the trial court, a new inquiry is not required to be made and they will have to submit an affidavit confirming their continued indigence.
Suppose, A was permitted to sue as an indigent person in his initial trial due to his financial constraints. Now, A wants to appeal the decision but cannot afford to pay the appeal fees. He can make the appeal as an indigent person. The court will review his application and perform an inquiry in accordance with the provisions of Order 33 to determine if he qualifies as an indigent person or not. However, since A was already permitted to sue as an indigent person. He is eligible to submit an affidavit affirming his financial situation has not improved and no further inquiry would be made into the same.
Impact of Res Judicata on Order 33 of CPC, 1908
The term “Res Judicata” is a Latin phrase and it translates to “a thing adjudged”. The principle of Res Judicata states that once a matter has been decided by a competent court, the same issue cannot be re-litigated between the same parties. No court can try a case that has been directly or substantially decided in a previous suit between the same parties, provided that the earlier decision was made by the court which had the correct authority and jurisdiction. It may be noted that Section 11 of CPC, 1908 lays down the principles of Res Judicata.
The question now arises what are the effects of Res Judicata on an application filed under Order 33 of CPC, 1908? The Hon’ble Supreme Court answered in negative and held that a suit filed as an indigent person can be barred by the principles of Res Judicata. This was held in the case of Solomon Selvaraj & Ors. vs. Indirani Bhagawan Singh & Ors. (2022).
Solomon Selvaraj & Ors. vs. Indirani Bhagawan Singh & Ors. (2022)
The facts, issues raised and judgement pronounced in this case have been briefed below.
Facts
The appellants filed a suit before the Trial Court for a declaration of title and recovery of possession. Along with the suit, they submitted an application under Rule 1 of Order 33 of CPC, 1908 to sue as an indigent person. The defendants argued that the suit was barred by Res Judicata and lacked a cause of action. The Trial Court dismissed the application and ruled that the suit was an abuse of process which was barred by the principles of res judicata. The Trial Court’s decision was upheld by the Madras High Court and aggrieved by this, the plaintiff appealed to the Supreme Court.
Issue
Whether the Trial Court can reject an application to sue as an indigent person solely based on the suit being barred by the principles of res judicata?
Judgement
The Hon’ble Supreme Court upheld the rejection application and stated that under Rule 5 of Order 33 of CPC, 1908, an application to sue as an indigent person can be rejected if the suit is barred by law which includes res judicata. The Court granted the plaintiff 4 weeks to pay the required court fees to be able to proceed in the suit.
Relevant case laws
This section of the article deals with key judgments pronounced by the Indian courts which help in better interpretation and understanding of Order 33 of CPC, 1908.
A.A. Haja Muniuddian vs. Indian Railways (1992)
In the case of A.A. Haja Muniuddian vs. Indian Railways (1992), it was held that “access to justice cannot be denied to an individual merely because he does not have the means to pay the prescribed fees”. This case is one of the most important judgments in the interpretation of Order 33 of CPC, 1908.
Facts
The appellant dispatched marble slabs from Makrana Railway Station to Ramanathpuram. However, the slabs ended up being damaged in transit and when they arrived at the destination they were broken into pieces. The appellant claimed Rs. 1,05,000 as compensation from the Railway Claims Tribunal which was established under the Railway Claims Tribunal Act, 1987. According to the provisions of the Railway Tribunal Act, 1987, the appellant was required to pay a fee of Rs. 2,055 but due to financial constraints, he could pay only Rs. 150 and requested to continue further as an indigent person. However, this request was denied by the railway tribunal citing that Order 33 was inapplicable on the claims made under the Railway Claims Tribunal Act, 1987.
Issue
Whether an indigent person can claim the benefit of Order 33 of CPC, 1908 when invoking the provisions of Railway Claims Tribunal Act, 1987.
Judgement
The Hon’ble Supreme Court held that the tribunal was incorrect in opting for a narrow interpretation of the Railway Claims Tribunal Act, 1987. The court opined that the Railway Tribunal has the powers to regulate its own procedure and is not precluded from invoking Order 33 of CPC, 1908 if doing so serves the ends of justice. The court observed that refusing to allow an indigent person to proceed with their claims due to their inability to pay the prescribed fee would result in gross injustice and leave such an individual without a remedy. The Supreme Court allowed the appeal and set aside the Tribunal’s order and remitted the case for reconsideration.
Alifiya Husenbhai Keshariya vs. Siddiq Ismail Sindhi & Ors. (2024)
The case of Alifiya Husenbhai Keshariya vs. Siddiq Ismail Sindhi & Ors. (2024) deals with the question of whether a person who has been awarded monetary compensation but has not received it, can sue as an indigent person. The facts, issues and judgement of the case have been briefed below.
Facts
The appellant was injured in a motor accident on 04th July 2010 while riding as a pillion passenger on a bike that was hit by a truck. She was hospitalised for 14 days, underwent plastic surgery, and claimed permanent disablement which rendered her unable to be able to work. Prior to the accident, she used to earn Rs. 3000 per month. She filed a claim of Rs. 10 lakhs with 18% interest and costs. On 17th October 2016, the tribunal awarded her Rs. 2,41,745 with 9% interest from the date of the claim. Dissatisfied with the decision, she filed an appeal in Gujarat High Court along with an application to proceed as an indigent person. Her application was dismissed by the High Court citing the reason that she was already awarded compensation even though she had not received it yet and the court granted her 8 weeks to deposit court fees. Aggrieved by this judgement, she filed an appeal in the Supreme Court.
Issue
Whether a person who has been awarded compensation but who has not received it can still file an appeal as an indigent person.
Judgement
The court observed that since the appellant had not received the compensation, his indigency will remain unaffected and his inability to pay court fees will be valid. The Hon’ble Supreme Court held that the Gujarat High Court was incorrect in rejecting her application since she had not received the money and allowed the appellant to appeal as an indigent person.
Sushil Thomas Abraham vs. M/s Skyline Build. Thr. Its Partner & Ors. (2019)
The case of Sushil Thomas Abraham vs. M/s Skyline Build. Thr. Its Partner & Ors. (2019) deals with the question of whether an indigent person can file an appeal under Order 44 if prior to that his application for indigency under Order 33 was rejected. The facts, issue and judgement have been briefed below.
Facts
Sushil Thomas Abraham filed a suit as an indigent person due to his inability to pay the court fees of Rs. 3,96,610. The respondent argued that the appellant had sufficient means to pay the court fees and was entitled to the indigent person status. The Trial Court dismissed the application citing that the appellant had failed to establish himself as an indigent person. The appellant then filed an application under Rule 1 of Order 44 of CPC, 1908, but this application was also dismissed by the High Court stating that he could not file an appeal under Order 44 without paying any court fees.
Issue
Whether the appellant was entitled to file an appeal as an indigent person under Rule 1 of Order 44 after his earlier application to file the suit as an indigent person had been rejected.
Judgement
The Hon’ble Supreme Court held that the rejection of the appellant’s application to file the suit as an indigent person under Rule 1 of Order 33 did not bar him from filing an appeal under Rule 1 of Order 44 as an indigent person. The Supreme Court observed that Order 33 mandates that an inquiry be conducted whether the appellant had become an indigent person on the date of decree. However, the High Court failed to conduct such an inquiry. The case was remanded to the Appellate Court for holding an inquiry as per Rule 3(2) of Order 44 of CPC, 1908.
Smt. Lakshmi vs. Vijaya Bank (2010)
The question of whether the legal representatives of the deceased person can continue to take benefit of the indigency status of the deceased arose in the case of Lakshmi vs. Vijaya Bank (2010). The relevant facts, issue raised and judgement pronounced by the Karnataka High Court has been briefed below.
Facts
R.V. Revanna filed a petition in the City Civil Court, Banglore in 2004 under Order 33 of CPC, 1908 to sue as an indigent person. The petition sought to declare a sale deed dated 02 January 2003 as void and for other consequential reliefs. R.V. Revanna passed away on 25 November 2008 before his cross-examination could be completed. The petitioners which included Revanna’s wife and children filed an application under Order 22 Rule 4 of CPC, 1908 to be recorded as legal representatives of the deceased petitioner. This application under Order 22 was dismissed by the trial court citing the reason that the financial status of the deceased petitioner was personal and the legal heirs cannot seek substitution.
Issue
Whether the legal representative of the deceased person who filed to sue as an indigent person can continue the petition under the same status of indigency.
Decision
The High Court of Karnataka held that while the right to claim the benefit of indigency under Order 33 is personal to the applicant but, the right to claim relief specified in the application devolves upon the legal representatives of the deceased applicant. The court ruled that the legal representatives should be allowed to come on record as representatives of the deceased petitioner.
Conclusion
The purpose behind the provisions of Order 33 of CPC, 1908 is to guarantee that financial limitations do not obstruct an individual’s right to seek justice. Denying someone access to justice simply due to the reasons of financial constraints is inherently, an act of gross injustice itself. By allowing underprivileged sections of society to approach the court and fight for their rights, Order 33 supports the larger objective of right to equality before the law and makes justice accessible to each and every citizen, regardless of their financial status.
However, the true impact of such provisions is hindered due to a lack of awareness among people. There is a pressing need to sensitise the underprivileged sections of the society about their rights and benefits given by the law through provisions like Order 33. The aim is to make justice accessible to all and not just available.
Frequently Asked Questions (FAQs)
What does the term “pauper” mean?
The term “pauper” was used to represent an underprivileged section of society who was unable to afford court fees due to their financial conditions. Later, the word “pauper” was replaced by “indigent person”.
Are there any provisions of recovery of court fees, if the indigent applicant wins?
Yes, in accordance with the provisions of Rule 10 of Order 33 of CPC, 1908, if a plaintiff gets a favourable order, the court will calculate the court fees which were initially exempted. The court will then direct the plaintiff to pay the exempted amount.
Can an application to sue as an indigent person be barred by Res Judicata?
Yes. The Supreme Court held that a suit filed as an indigent person can be barred by the principles of Res Judicata. This was held in the case of Solomon Selvaraj & Ors. vs. Indirani Bhagawan Singh & Ors. (2022).
References
- https://blog.ipleaders.in/analysis-of-order-33-of-cpc-suits-by-indigent-persons/
- Code of Civil Procedure by C.K. Takwani (7th edition, 2013)
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