DR RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW
(SESSION 2022-2023)

Analysis of Order 33 of CPC (suits by indigent persons)

SUBMITTED TO – SUBMITTED BY –

Mr. VIPUL VINOD VANSHIKA SHUKLA

ASSISTANT PROFESSOR Enrolment No.- 210101165

(CIVIL LAW) B.A.LL.B. (Hons.)

Dr. Ram Manohar Lohiya National Law University 4th Semester, Section ‘B’
 Table of Contents
ACKNOWLEDGMENT ......................................................................................................... 3
INTRODUCTION .................................................................................................................. 4
WHO IS AN INDIGENT PERSON? ....................................................................................... 4
LEGAL REPRESENTATIVE AS AN INDIGENT ................................................................... 5
INQUIRY INTO THE MEANS OF AN INDIGENT .................................................................. 6
PROCEDURE TO FILE A SUIT AS AN INDIGENT PERSON .............................................. 6
REJECTION OF APPLICATION........................................................................................... 7
COSTS ASSOCIATED WITH THE SUIT .............................................................................. 9
CONCLUSION .................................................................................................................... 11
BIBLIOGRAPHY ................................................................................................................ 12
 ACKNOWLEDGMENT

I have taken efforts in this project. However, it would not have been possible without the kind
support and help of many individuals and organizations. I would like to extend my sincere
thanks to all of them. I am highly indebted to Dr. VIPUL VINOD for his guidance and
constant supervision as well as for providing necessary information regarding the project,
also for his support in completing the project. I extend my gratitude towards the seniors and
batchmates of my course, who constantly helped me find the best sources for research. This
project is a result of my efforts combined with all the means and environment that has been
provided to me by Dr. Ram Manohar Lohiya National Law University, Lucknow and its
authorities and I am thankful to them.
INTRODUCTION

The concept of justice invokes the rule of law and relates to dispute resolution by institutions
that produce laws and those that implement them. Justice entails fairness and implicit
acceptance of the idea of equability. The notion of justice includes access to justice. The
primary goal of giving access to justice is to ensure that everyone, regardless of social or
economic background or other incapacities, can seek redress via the legal system. Democracy
cannot be called to be thriving until the impoverished and vulnerable members of society can
use the administration of justice to claim their rights. Legal assistance is a great way of
assisting the poor and downtrodden.

This project is concerned with the legal provisions of the Civil Process Code of 1908. Order
33 of the Civil Procedure Code allows indigent people to file cases. It permits those who
cannot afford court fees to file lawsuits without paying the required court expenses.

WHO IS AN INDIGENT PERSON?

The dictionary definition of an 'indigent individual' is someone who is in severe poverty,

impoverishment, or lacks the fundamental resources needed in everyday living. In legal
terms, an indigent individual is one who does not have the financial means to pay the court
charge.

Order 33 of the Civil Procedure Code1 deals with suits filed by indigent people. The term
"Pauper" was previously used. Furthermore, the phrase "indigent person" was used in areas
where the term "pauper" had appeared because it was inappropriate, especially after India had
committed to a socialistic structure of society.2

1 Civil Procedure Code, 1908

2 Civil Procedure (Amendment)Act, 1976
The basic purpose of Order 33 was widely discussed by the Kerala High Court in Sumathy
Kutty v. Narayani3, 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.

Under Order 33 Rule 1, a person is described as a poor person if he does not have adequate
means, other than property exempted from seizure in performance of the degree, to pay
specified costs. In the case of Union Of India v. Khader International Construction4, the
Supreme Court of India ruled that the term "person" stated in Order XXXIII, Rule 1
encompasses not only natural persons but also judicial persons such as a public limited
company.

The applicant should present the claim to the court in person unless he is excused from
appearing in court, in which case the application may be presented by an approved agent,
who would answer all significant questions pertaining to the application. The judge will
question the applicant or his agent about the grounds of the claim and the applicant's
property.

LEGAL REPRESENTATIVE AS AN
INDIGENT
In Lakshmi v Vijaya Bank5, R.V. Revanna filed a petition under Order 33 Rule 1 and Rule 7
claiming to be an indigent individual. The respondent claimed the petitioner was
impoverished and questioned his indigency. The petitioner perished before his cross-
examination began, leaving behind his wife and children. Following that, the petitioner's wife
applied for permission to file the suit as a legal representative. The trial judge noted that in
the event of the applicant's death, the legal representatives will not be allowed to replace the
indigent person because the right to suit as an indigent person is a personal right.

3 Sumathy Kutty v. Narayani, AIR 1973 Ker 19

4 Union Bank of India v. Khader International Construction Ltd. (1992 (2) KLT 274)
5 Lakshmi v. Vijaya Bank, 2010 SCC OnLine Kar 4562
INQUIRY INTO THE MEANS OF AN
INDIGENT

According to Rule 1A of Order 33, the Chief Ministerial Officer of the court has the power to
conduct an enquiry. The enquiry is performed in the first instance to determine whether or not
a candidate is indigent. It is up to the judge to decide whether to accept the report provided by
such an officer or to investigate6.

PROCEDURE TO FILE A SUIT AS AN

INDIGENT PERSON

Before filing a suit as an indigent person, it is critical to include all pertinent materials in the
application for authorization to be an indigent person7. According to Rule 2 of Order XXXIII,
the application must include the same details as the plaint and all movable or immovable
assets of the indigent person/applicant, as well as their assessed worth.

The indigent person/applicant must personally submit the application to the judge. If such a
person is excused from appearing in court, an authorized agent may submit the application on
his behalf. In some cases, where there are two or more plaintiffs, the application can be
submitted by either of them8. The action starts when the application to sue as an indigent
person is filed with the court. The indigent person/applicant is then questioned by the judge.
However, if the candidate is represented by a representative, the court may conduct an
examination of the applicant by the commission. 9

6 Civil Procedure Code, 1908, (Order XXXIII, Rule 1A)

7 Civil Procedure Code, 1908, (Order XXXIII, Rule 2)
8 Civil Procedure Code, 1908, (Order XXXIII, Rule 3)
9 Civil Procedure Code, 1908, (Order XXXIII, Rule 4)
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:

o 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 33. Rule 2 and Rule 3 deal with the contents of the application
and its presentation respectively.
o The application can be rejected by the court in case the applicant is not an indigent
person.
o 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.
o The court possesses the power to reject the application filed by an indigent person
in an instance where there is no cause of action.
o 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.
o Rejection of application is done when the allegations indicate that the suit is barred
by any law.
o 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. 10

• 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. 11

10 Civil Procedure Code, 1908, (Order XXXIII, Rule 5)

11 Civil Procedure Code, 1908, (Order XXXIII, Rule 6)
 • 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.12

• 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. 13

• 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:

o Where the applicant is guilty of vexatious or improper conduct in the course of the
suit; or

o Where the applicant’s means are such that he will not continue to sue as an indigent
person; or

o Where the applicant has entered into an agreement under which another person has
obtained an interest in the subject matter of the suit. 14

• The Kerala High Court in R. Jayaraja Menon v. Dr. Rajakrishnan And Anr., 15while
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 the 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.

12 Civil Procedure Code, 1908, (Order XXXIII, Rule 7)

13 Civil Procedure Code, 1908, (Order XXXIII, Rule 8)
14 Civil Procedure Code, 1908, (Order XXXIII, Rule 9)
15 R. Jayaraja Menon v. Dr. Rajakrishnan And Anr. AIR 1998 Ker 15
 • 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.16

COSTS ASSOCIATED WITH THE SUIT

Order XXXII Rule 16 of CPC states that the costs in the suit will include the costs of an
application to sue as an indigent person as well as the cost of inquiry into indigency.

1. When an indigent person succeeds: According to Rule 10 of Order XXXIII, where

the plaintiff (indigent person) succeeds in the suit, the court shall calculate the
amount of court fees and costs and recover the same from the plaintiff in the manner
as if he had not been permitted to sue as an indigent person. In case the plaintiff
(indigent person) fails to pay the amount, then in such case, the amount shall be
recoverable by any such party that was ordered by the decree. 17

2. Where an indigent person fails: According to Rule 11 and Rule 11-A Order XXXIII
where the plaintiff (indigent person) fails or the permission granted to the indigent
person is withdrawn under Rule 9A, or where the suit is withdrawn or dismissed,
the court shall in such case either order him (plaintiff) or a co-plaintiff to pay court
fees and costs in the manner as if he had not been permitted to sue as an indigent
person. Where the suit abates on account of the death of a plaintiff, such court fees
would be recovered from the estate of the deceased plaintiff.18

3. The Hon’ble Supreme Court in Union Bank of India v. Khader International

Construction, held that Order 33 CPC is an enabling provision that allows the
indigent person to file a suit without paying the court fee at the initial stage. In case
the plaintiff succeeds in the suit, the court calculates the amount of court fee which
would have been paid by the plaintiff if he had not been permitted to sue as an
indigent person and that amount would be recoverable by the State from any party
ordered by the decree to pay the same. However, if the suit is dismissed, then also

16 Civil Procedure Code, 1908, (Order XXXIII, Rule 9A)

17 Civil Procedure Code, 1908, (Order XXXIII, Rule 10)
18 Civil Procedure Code, 1908, (Order XXXIII, Rule 11 & 11A)
 the State would take steps to recover the court fee payable by the plaintiff and this
court fee shall be a first charge on the subject- matter of the suit.

4. According to Rule 12 of Order XXXIII, the state government possesses the right to
apply to the court to pass an order concerning payment of court fee to be paid under
Rule 10. 19

5. Rule 14 provides that the court shall recover the court fee by forwarding the order
or decree to the collector who shall then collect the fee in the manner as if it were
an arrear of land revenue. 20

6. In case if the application to sue as an indigent person is refused, he shall still possess
the right to file a suit in an ordinary manner. However, such a person shall be denied
to file an application of similar nature in respect of the same matter21.

7. Rule 18 states that apart from Order XXXIII of the Code, the state or the Central
Government may make additional provisions for free legal services in respect of
indigent persons. 22

19 Civil Procedure Code, 1908, (Order XXXIII, Rule 12)

20 Civil Procedure Code, 1908, (Order XXXIII, Rule 14)
21 Civil Procedure Code, 1908, (Order XXXIII, Rule 15)
22 Civil Procedure Code, 1908, (Order XXXIII, Rule 18)
 CONCLUSION
It has been noted that Order XXXIII allows the poor, penniless, and oppressed to seek justice
by exempting them from paying the necessary Court costs if they satisfy the requirements of
a needy person as defined by Order XXXIII. Order XXXIII also allows such impoverished
individuals to sue in their own name. When determining the application, the court must take
into consideration those with adequate means and refuse them the right to claim as indigents.
The right to sue as an indigent individual must be carefully granted to those who confront
financial constraints and lack fundamental means, as access to justice can sometimes take the
shape of injustice.

People are generally unaware of such rules, as well as the existence of free legal assistance
services. As a result, every person must make attempts to educate the vulnerable segments of
society about free legal aid services. Furthermore, it is believed that unhappy people would
suffer more because free legal aid services would jeopardise the standard of advocacy
services. Without a question, this is true in some instances where the advocates assigned by
district legal services authorities are unresponsive and dispassionate; however, this can be
addressed by submitting the complaint to the appropriate authority/department.
 BIBLIOGRAPHY

• MP Jain, Civil Procedure Code (Lexis Nexis Butterworth India; 2019th

edition )
• C. K. Takwani, civil procedure code, 1908 (Eastern Book Company,12
July 1905)
• THE CODE OF CIVIL PROCEDURE, 1908
• https://blog.ipleaders.in/analysis-of-order-33-of-cpc-suits-by-indigent-
persons/#Who_is_an_indigent_person
• https://www.legalserviceindia.com/legal/article-555-analysis-of-order-33-
of-the-civil-procedure-code
1908.html#:~:text=Order%2033%20of%20CPCprovides%20for%20filin
g%20of%20suits,institute%20suits%20without%20payment%20of%20re
quisite%20court%20fees.

• https://www.legalservicesindia.com/article/1279/Suits-by-
indigent-person.html