Definition
An indigent person is one who does not have sufficient means (other than property exempt from attachment and the subject matter of the suit) to pay the court fees prescribed for a suit (Order XXXIII R.1, Explanation I). Order XXXIII enables such a person to institute a suit without paying court fees upfront, subject to an inquiry by the court.
The right to access justice is a constitutional guarantee. Poverty cannot be a bar to litigation. Order XXXIII operationalises this guarantee by deferring the court fee obligation, not eliminating it.
Legal Framework
| Rule | Provision |
|---|---|
| O.XXXIII R.1 | Any suit may be instituted by an indigent person; Explanations I to III define indigency |
| O.XXXIII R.1A (1976) | Inquiry into means made first by the chief ministerial officer, unless the court directs otherwise |
| O.XXXIII R.2, R.3 | Contents of application (plaint particulars plus schedule of property); presentation in person |
| O.XXXIII R.4 | Court may examine the applicant on the merits of the claim and his property |
| O.XXXIII R.5 | Grounds on which the application shall be rejected |
| O.XXXIII R.6, R.7 | Notice to the opposite party and Government pleader; hearing of evidence on indigency |
| O.XXXIII R.8 | If granted, the application is deemed the plaint; no court fee or process fees |
| O.XXXIII R.9 | Withdrawal of permission |
| O.XXXIII R.9A (1976) | Court may assign a pleader to an unrepresented indigent person |
| O.XXXIII R.10 | If the plaintiff succeeds, court fee recoverable by the State from any party ordered by the decree; first charge on the subject matter |
| O.XXXIII R.11, R.11A | If the plaintiff fails, withdraws or the suit is dismissed for default, the plaintiff pays the court fee; on abatement, recoverable from his estate |
| O.XXXIII R.12 to R.14 | State may apply for payment; deemed a party for S.47; recovery through the Collector as arrears of land revenue |
| O.XXXIII R.15, R.15A | Refusal bars a second application on the same right to sue; court may grant time to pay court fee |
| O.XLIV | Appeals by indigent persons |
Core Content
Who is an Indigent Person? (O.XXXIII R.1)
- A person is indigent if he is not possessed of sufficient means to pay the fee prescribed for the plaint.
- Means exclude property exempt from attachment in execution of a decree (S.60 CPC) and the subject matter of the suit (Explanation I(a)).
- Where no fee is prescribed, a person is indigent if not entitled to property worth one thousand rupees (Explanation I(b)).
- Property acquired after the application and before its decision is taken into account (Explanation II); a representative plaintiff is judged by the means held in that capacity (Explanation III).
- "Sufficient means" means the ability in the ordinary course to raise money by lawful means, including pension and help from family (Mathai M. Paikeday, 2011).
- "Person" includes a company or other juristic person (Khader International, 2001).
Application to Sue as Indigent (O.XXXIII R.2)
The application must contain:
- Particulars required for a plaint.
- A schedule of the applicant property with estimated value.
- A statement showing that the applicant is unable to pay the court fee.
Court Inquiry (O.XXXIII R.1A, R.4, R.6, R.7)
The court examines two issues:
- Genuineness of indigency: inquiry by the chief ministerial officer in the first instance (R.1A), then evidence on notice to the opposite party and the Government pleader (R.6, R.7).
- Cause of action and bar: the court may examine the applicant on the merits (R.4); the application is rejected if the allegations show no cause of action or a bar by law (R.5(d), (f)).
The State subsidises the court fee. It is entitled to verify that the subsidy is not misused by false claims of poverty or to prosecute manifestly baseless suits.
Grounds for Rejection (O.XXXIII R.5)
The court shall reject the application:
- (a) where it is not framed and presented as required by R.2 and R.3;
- (b) where the applicant is not an indigent person;
- (c) where, within two months before presentation, he disposed of property fraudulently or to be able to apply as an indigent person (but not if he would still be indigent counting that property);
- (d) where his allegations do not show a cause of action;
- (e) where he has made an agreement under which another person has obtained an interest in the subject matter;
- (f) where the allegations show that the suit would be barred by any law (for example limitation);
- (g) where another person has agreed to finance the litigation.
Effect of Granting Permission
- Suit proceeds without payment of court fees.
- The application is numbered and registered and deemed to be the plaint (R.8).
- If suit succeeds: the court calculates the court fee, which the State Government recovers from any party ordered by the decree to pay it; it is a first charge on the subject matter (R.10).
- If suit fails (or is withdrawn or dismissed for default): the court orders the plaintiff or co-plaintiff to pay the court fee; the court has no discretion to make the defendant pay (R.11; R.V. Dev, 2007).
The State is not made a defendant. The Government pleader gets notice of the inquiry (R.6), the State may apply for payment (R.12), and disputes between it and the parties are treated as S.47 questions (R.13).
Withdrawal of Permission
- On application of the defendant or the Government pleader, with seven days' notice, permission may be withdrawn for (a) vexatious or improper conduct, (b) means that make it improper to continue as indigent, or (c) an agreement giving another person an interest in the subject matter (R.9).
- On withdrawal, the plaintiff must pay the court fee (R.11).
Key Cases
Union Bank of India v. Khader International Construction (2001) Union Bank of India v Khader International Construction 2001
Issue: Whether the right to sue as an indigent person should be construed liberally or restrictively.
Rule: Order XXXIII is a benevolent provision and is given an extended meaning; "person" includes juristic persons such as companies.
Held: A public limited company may sue as an indigent person if it satisfies the means test. The appeal was dismissed.
Mathai M. Paikeday v. C.K. Antony (2011) Mathai M Paikeday v CK Antony 2011
Issue: Whether a retired officer drawing pension, whose son abroad sent him money, was an indigent person for filing appeals.
Rule: "Sufficient means" is the ability in the ordinary course to raise money by lawful means; employment, income including pension, unencumbered assets, debts and help from family may be considered.
Held: Non-production of bank records justified an adverse inference; he was not indigent. The appeals were allowed, with 45 days to pay court fee.
R.V. Dev v. Chief Secretary, Government of Kerala (2007) RV Dev v Chief Secretary Government of Kerala 2007
Issue: Who pays the court fee where an indigent plaintiff's suit fails.
Rule: Under O.XXXIII R.11, where the suit fails, the court must order the plaintiff or co-plaintiff to pay; it cannot direct the defendant to pay.
Held: The High Court's order was upheld and the appeal dismissed.
Distinctions
| Point | Indigent Suit | Ordinary Suit |
|---|---|---|
| Court fee | Deferred; not paid upfront | Paid at time of filing |
| Preliminary inquiry | Mandatory (indigency + merit) | Not required |
| Role of State | Notice to Government pleader; State recovers fee (R.6, R.10 to R.14) | None |
| Fee if suit succeeds | Recovered from decree proceeds | Already paid |
| Fee if suit fails | Plaintiff ordered to pay (R.11) | Already paid; no refund |
Criticism and Debate
- History: The 1976 Amendment replaced "pauper" with "indigent person", added the inquiry by the chief ministerial officer (R.1A), the assignment of a pleader (R.9A) and grounds (f) and (g) in R.5, and allowed time to pay court fee (R.15A).
- Access to justice: Order XXXIII gives effect to Article 39A. Critics note that the inquiry can take months, and that the means test in Explanation I is outdated (the one thousand rupee figure).
- Liberal reading: Khader International (2001) extends relief to companies, while Mathai M. Paikeday (2011) shows strict scrutiny of means.
- Conclusion: Order XXXIII defers, but does not waive, court fee; the State recovers it on the result of the suit.
Essay Outline
- Introduction: access to justice, Article 39A.
- Who is indigent: Explanations I to III; Khader; Mathai.
- Procedure: R.1A to R.8.
- Rejection: R.5 grounds.
- Withdrawal and court fees: R.9 to R.14; R.V. Dev.
- Appeals: O.XLIV.
- Conclusion.
Exam Scenario
Problem: X wishes to file a suit for recovery of Rs. 5 lakhs but cannot afford the court fee. He applies to sue as an indigent person. Inquiry reveals that he transferred his land to his brother 6 weeks before filing the application.
Analysis:
- O.XXXIII R.5(c): Application must be rejected if the person has fraudulently disposed of property within 2 months before the application.
- Transfer occurred 6 weeks (within 2 months) before filing.
- The court must examine whether the transfer was fraudulent or genuine.
- If the court finds the transfer was made to falsely project indigency, the application must be rejected.
- Proviso to R.5(c): if X would still be indigent after counting the land, the application is not rejected.
- Met / Not met: transfer within two months: Met; fraudulent or to qualify: to be decided on evidence; still indigent counting the land: to be decided.
- If rejected, a second application on the same right to sue is barred (R.15), but X may sue in the ordinary way, and the court may allow time to pay the court fee (R.15A).
Recall Check
- Who is an indigent person under O.XXXIII R.1 CPC?
- What two issues does the court examine when an application to sue as indigent is filed?
- How does the State recover court fees in an indigent suit, and is it a party?
Flashcards
Q1: What is the test for indigency under O.XXXIII R.1? A1: The person does not possess sufficient means to pay the prescribed court fee; means exclude property exempt from attachment and the subject matter of the suit (Explanation I).
Q2: What does the court examine at the inquiry stage? A2: (1) Whether the applicant is indigent (R.1A, R.6, R.7). (2) Whether any R.5 ground applies, such as no cause of action or a bar by law (R.4, R.5).
Q3: What happens to the court fee if an indigent person wins the suit? A3: The State Government recovers it from any party ordered by the decree to pay it; it is a first charge on the subject matter (R.10).
Q4: What happens to the court fee if the indigent person loses the suit? A4: The court orders the plaintiff (or co-plaintiff) to pay it (R.11); it cannot direct the defendant to pay (R.V. Dev, 2007).
Q5: Can an indigent person fraudulently transfer property to claim indigency? A5: No. O.XXXIII R.5(c) requires rejection if he disposed of property fraudulently within two months before presentation, unless he would be indigent even counting that property.
Q6: Is the State made a defendant in an indigent suit? A6: No. The Government pleader gets notice (R.6); the State may apply for payment (R.12) and is deemed a party for S.47 questions on court fees (R.13).
Q7: Can permission to sue as indigent be withdrawn during the suit? A7: Yes, under R.9, for vexatious conduct, sufficient means, or an agreement giving another an interest in the subject matter.