Objectively analyses the legislation of suits filed as an
indigent person. In addition to the justice provided to the society by the
Judiciary, The Indian constitution has provided every person with the provisions
of free legal assistance to let them reach that justice provided despite the
economic conditions of individuals.
The main point of this research paper is to
clarify in depth the rights, duties, and liabilities of an indigent individual.
The objective of this research paper is to critically survey the procedure of
filing as an indigent person. This paper critically analyses the hindrances
faced to access to justice. The paper is divided into 3 chapters which answer,
firstly, is the cost of litigation a hindrance to access to justice, secondly,
how Civil Procedure Code, 1908 avoids this kind of hindrance by further
understanding the eligibility of who is entitled to sue as an indigent person
and the liability of such indigent person.
Thirdly, the paper discusses the
procedures involved in filing a suit and application as an indigent person. Some
suggestions were put forth by the researchers to avert the hindrance and moved
forward for availing natural justice followed by a bibliography of the resources
taken for the research paper.
To no one will we sell, to no one will we deny or delay right or justice.
Order XXXIII of the Civil Procedure Code, 1908 (hereinafter as CPC) deals with
Suits by Indigent Persons. An indigent person is one who is not financially
stable to proceed with the filing of a suit. Earlier the suit was also referred
as 'a pauper suit' but due to social standards it has been renamed. Order
XXXIII, Rule 1 defines an indigent person. Under these provisions the aim is,
without payment, to make it possible for persons too poor to pay Court fees. A
party seeking an exemption from the court fee shall satisfy the Court with one
important aspect, i.e. the fact that it is not able to afford Court fees.
not enough for the party to make a prompt declaration in this respect, it is a
legal requirement that the statement be proven for the Court to be
satisfied. The court will also take into consideration the properties bought
by the indigent person during the application filed. Order XXXIII, Rule 5
sub-clause (f) of the CPC mandates to determine whether the suit is time-barred
by any law for the time being in force. And the complaint may be deemed to be
subject to restrictions on the allegations in the request and the permission to
sue as a poor person will be rejected.
The purpose was deliberated in Sumathy Kutty v Narayani, where it was held, the
real test to determine 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 to pay the requisite court fee.
Chapter 1: Cost of Litigation - A Hindrance to Access to Justice
Before proceeding further, it would be apposite to refer to the concept of costs
Costs signifies the sum of money which the court orders one party to pay
another party in respect of the expenses of litigation incurred. Except where
specifically provided by the statute or by the rule of Court, the costs of
proceedings are at the Court's discretion.
Justice Bowen in, Cropper v Smith, said, I have found in my experience that
there is one panacea which heals every sore in litigation and that is cost.
Most of the litigants consider seeking legal action is often quite complex and
expensive, with inflated costs and spurious appeals impeding cases consistently.
Access to Justice acts as a dream come true for a poor person only on the
account of financial or similar constraints. Unlike prosperous clients, the
majority of the people in India cannot afford to spend a hefty amount on
litigation. It acts as a crippling hardship to many, at the lower level. The
laws governing costs are also embedded in sections 35, 35A, and 35B of the
To afford a good lawyer a regular salary-earner has a lot to suffer. The
challenge here does not end, government abuse, excessive trips to courts are on
the rise. In India, many people fail to seek justice for years. Some people are
battling the case for years , or even decades, while many do not even think
about going to court to fix their problems. Extensive litigations, exorbitant
counsel fees and an almost non-existent legal service structure have made the
average citizen unavailable to one of the world's largest justice structures.
It is important to talk of Procedural Law. It is one of the key roles of our
government to ensure justice and the right to access to courts. The maxim, Ubi
Jus Ibi Remedium
, means that there must be a solution where there is a right.
This impediment to access requires development if this approach is rejected. All
have fair rights, but sadly the courts are resource-based, a complicated,
expensive, and late legal procedure that is dividing the disadvantaged.
stronger resource worker will have a good verdict. It is the State's
responsibility to annul complications as a cause of the decision. It is
therefore less accessible for ordinary people in the complex legal process. If
you go to court and receive an adjournment, you must pay the counsel for the
second hearing. While the lawyer consents to do so for a limited fee, secret
costs often occur. In Hussainara Khatoon v. The State of Bihar,
it was held that
for any person who is unable to afford a lawyer due to poverty, it is the duty
of the State to provide the person a lawyer.
Free legal assistance occurs in India, however, but seldom operates. Under
Article 39A of the Constitution of India, the State shall ensure that justice
is promoted on an equal footing by its service and, in particular, grants free
juridical assistance, by appropriate laws, or schemes or in some other manner,
to ensure that there are no economic or other disability resources available for
any person to achieve justice. Articles 14 and 22(1) of the Constitution
of India also make it mandatory for the Executive, on an equal opportunity
basis, to ensure equality before the law and to uphold justice. There have been
many organizations established for this reason, but they are of no help.
Order XXXIII, Rule 1 of the CPC provides for a suit filed by indigent
persons. The provisions of Order XXXIII encourage and enable poor people,
without payment of any court costs, to initiate and prosecute suits. The order
waives the court charge at first instance and allows them to prosecute their
suit in forma pauperis if certain conditions are complied with.
There are 2
qualifications to be an indigent person:
These qualifications come into the picture in 2 situations:
- The person has no means to pay.
- The property must value less than INR 1000.
No means to pay becomes a qualification to be an indigent person if fees have
been prescribed. If no fees have been prescribed, an indigent person will be
declared where the property is less than INR 1000.
The 240th Law Commission Report stated:
A litigant, who starts the litigation, after some time, being unable to bear
the delay and mounting costs, gives up and surrenders to the other side or
agrees to settlement which is something akin to creditor who is not able to
recover the debt, writing off the debt. This happens when the costs keep
mounting and he realizes that even if he succeeds, he will not get the actual
costs. If this happens frequently, the citizens will lose confidence in the
civil justice system.
It is not that the apex court is not aware of these situations, it is. In Vinod
Seth vs Devinder Bajaj
, the apex court observed, Under no circumstances, costs
should be a deterrent to a citizen with a genuine or bona fide claim, or to any
person belonging to the weaker sections whose rights have been affected, from
approaching the courts.
Similar views were stated in Ashok Kumar Mittal vs. Ram Kumar Gupta
, and it
was discussed that due to lack of provisions governing costs has ensued in an
increase in frivolous suits. Also stated, following Alternate Dispute Resolution
Mechanism will likely fail in absence of the provisions governing costs.
There has been unapproachable to access justice. The pendency of the suits,
costs, complexities, lack of consciousness has crippled the legal
system. Many people are still in a dilemma that there is no availability of
justice to them in respect to how the law and legal system works. For them, the
law remains a mystery and justice remains invisible.
Therefore, given the above statements, yes, the cost of litigation undeniably
acts as a hindrance or the barrier to access to justice.
Chapter 2: How Civil Procedure Code avoids this Hindrance
The support that CPC extends for an indigent person is an exemption from court
fees. Only because a person is not able to pay a court fee, he shall not be
denied justice. He can come before the court, true that he is indigent, and
then continue with the case without paying the court fee. But the court does not
readily agree, the moment a person makes an application to be declared as an
indigent person, the court conducts its inquiry into it and after satisfaction
only, he shall be declared an indigent person.
Further, the indigent status of
the person can be reviewed at any stage of the proceedings. If he has overcome
the indigency due to changed circumstances, the person shall be asked to pay the
court fee and the status of indigency will be withdrawn.
Poverty should not be the cause for the refusal of justice. The object and
purpose of the CPC is to enable a person, who is ridden by poverty, or not
possessed of sufficient means to pay court fee, to seek justice. Therefore,
access to justice cannot be denied to an individual merely because he does not
have the means to pay the prescribed fee. The fee could be exempted if he is
Order XXXIII, Rule 16 of CPC, provides for the costs of an application to sue as
an indigent person shall be the costs in the suit.
According to Order XXXIII, Rule 10 of CPC, if the plaintiff (indigent person)
succeeds in the suit, the court will calculate 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. 
According to Order XXXIII, Rule 11, and 11-A of the CPC, 'if the plaintiff
(indigent person) fails in the suit, the court shall order the plaintiff to pay
court fees and costs.'
The state would take all the steps to recover the court fee payable to the
plaintiff. The possible reason could be frivolous litigations. The court fee
shall be a first charge on the subject matter of the suit. Order XXXIII of the
CPC only defers the payment of the court fees.
An indigent person is also authorized to take up an appeal under Order XLIV,
Rule 1 of the CPC by presenting an application along with a memorandum of
appeal with all the grounds available as to an ordinary person, and an indigent
person can also file cross-objections.
The effect has been discussed in the following cases:
In RV Dev v Chief Secretary
, Govt of Kerala, it was held that the payment of
court fee as the scheme is merely deferred. It is not altogether wiped off.
In Union Bank of India v Khader International
, it was held that Order XXXIII is
merely an enabling provision that allows the filing of a suit by an indigent
person without paying the court fee at the initial stage. 
The Limitation Act also plays an important part in the indigency suit as it
prescribes a particular time limit within which the suit must be filed. As per
Section 13, Limitation Act, 1963, in the calculation of the limitations period
prescribed for all proceedings, and in all cases, where a request for a leave to
sue or a recourse has been made and rejected, the application for leave to sue
or the appeal as a pauper is excluded and the Tribunal may, by payment of the
prescribed Court fee, exclude the time during which the applicant has proceeded
in good faith with his application for such leave.
The section expressly stipulates that the time for application in forma pauperis
shall be bona fide until such time as the applicant rejects the restriction of
action or appeal and that the court fee payable to the applicant would also be
treated as if that fee had been paid in the first instance. The fee of the Court
should be paid in the time between the initial submission of the suit and the
request, and the initial expiry of the limitation period.
Where an application is made to proceed as a pauper, the plaintiff shall have
the competence to pay the Court fees, with the permission of the Court, during
the pending proceedings and upon payment of such court fees it shall be held
that the proceedings were prescribed the day when the application was first
In Bashir Ahmad v. Rashida Khatoon
, it was held that:
appeal for leave or appeal
to the court as a pauper is of no validity and no effect on the payment of the
court fee. The time required to pay the Court of Law was the same as if the
court fee in the first instance had been paid.
In P. Sreedevi v. P. Appu,
it was held that:
Section 13 of Limitation Act, 1963
concluded that no time limits are laid down and the Court may extend the time at
its discretion to the extent it considers appropriate. But it should be
demonstrated that, when presenting the application as a pauper, the applicant
acted in good faith.
Thus, The Civil Procedure Code avoids this hindrance as stated above.
Chapter 2.1: Entitled to sue as an Indigent Person
Under this Rule, an indigent person is entitled to sue. Such an indigent person
is also described under this order XXXIII, Rule 1 of the CPC.
An indigent person is a person who does not have adequate means of paying court
fees and is unable to take any action against other person and is also not
entitled to property worth 1,000 rupees other than the property exempted from
attachment in the course of the execution of a decree and the subject-matter of
Factors such as the job status of an individual and overall income, including
retirement benefits in the form of a pension, the possession of debt-free assets
and the overall indebtedness of an individual and financial aid may be taken
into consideration to decide if a person has appropriate or indigent means of
paying the required court fee. The term 'sufficient means' in Order XXXIII,
Rule 1 of the CPC, therefore, refers to the ability or capacity of an individual
to raise money in an ordinary course of living.
In Manglu Chattar v. Maheshwar Bhoi,
the appellant had instruments and materials
for weaving and earned regular wages. There was no other evidence from the
defendant's side to prove that the petitioners own any other property.
There is, therefore, no question that the appellants were all weavers and that
their weaving materials consist of artisanal instruments. To figure out if they
would be able to afford the court fee, these assets should not be considered.
Also, the daily salaries they earn may not be considered. Based on the review
referred to above, it should be held that the appellants were indigent persons
and should therefore be entitled to sue as indigent persons.
The meaning of the word 'person' must be provided in the context in which it is
used. It refers to a person who can file a suit, and an expanded interpretation
must be given to this being a protective clause. An application under Order
XXXIII, Rule 1 CPC, can therefore be very well maintained by a public limited
company that is entitled to maintain a suit as a legal individual. The term
'person' referred to in Order XXXIII, Rule 1 of CPC includes not only a natural
person but also other legal entities.
In Union Bank of India vs Khader International
, the question raised was,
whether a Company can sue as an indigent person under Order XXXIII, Rule 1 of
CPC. It was held that a public limited company, which is otherwise entitled to
maintain a suit as a legal person, can very well maintain an application as an
indigent person under Order XXXIII, Rule 1 CPC.
In the first place, any inquiry into the question of whether a person is or an
indigent person shall be made by the chief ministerial officer of the court
unless the court orders otherwise and the court may adopt the report of that
officer as its own finding, or may itself inquire into the respective subject
Chapter 2.2: Liability of an Indigent Person
An individual who is allowed to sue as an indigent person is responsible for
paying the court fee that he would have paid if he were not allowed to sue in
that capacity, if he fails the suit at trial or even without a trial.
The court would determine the amount of court fee that the plaintiff would have
paid if he had not been allowed to sue as an indigent person if that person
prevailed in the suit, and that amount would be recoverable by the
State. Furthermore, it is provided that, if the lawsuit is dismissed, the
State will also take measures to recover the court fee owed by the plaintiff and
that court fee will be the first fee in respect of the case.
Order XXXIII, Rule IX of CPC allows for a contingency where, while initially
allowed to sue as an indigent person, the plaintiff ceases to be an indigent
party after the suit is instituted. When the applicant fails to be an indigent
person, he is ordered to pay the court fee that he would have paid if a
non-indigent person had to. It is a matter of the court's discretion if they
wish to displease the defendant.
In Ganga Dahal v. M.T.,Gaura
, the issue of the plaintiff partially failing
of suit came before the Allahabad High Court. a division bench of the held that
the legislature, under Rule X of Order XXXIII of the CPC, deals with the case of
an indigent claimant who succeeds in the case and, under Rule XI, with the case
of an indigent claimant who does not succeed in the case.
In such cases, there is no special rule in which a plaintiff has partly
succeeded and partly lost.
The court is probably meant to deal with such a case
by incorporating the terms of the two laws. It is clear that if the plaintiff
who is entitled to bring the case as an indigent person succeeds in the part of
the lawsuit, the court cost payable by the plaintiff for the lawsuit must be
assigned to the plaintiff and the defendant in proportion to the success of each
party. Accordingly, the liability of the plaintiff who has filed a suit as an
indigent person or in the forma pauperis
to pay the court fee if he completely
succeeds in the suit and to pay the court fee in proportion to the success of
the suit if he succeeds partly in the suit under the provision of Rule 10 and to
pay the entire court fee if he fails in the suit under Rule 11 of the Order
XXXIII of CPC.
The problem of indigence is connected to the payment of court fees. The
principal issue of the state government is the payment of court costs and the
imposition of liability on indigent persons as required.
Chapter 3: Process of filing a suit as Indigent Person
An application filed for exemption of suit by an indigent person is been
examined and processed as mention under Order XXXIII Rule 2 to rule 8, of the
Indigent parties, in the first place, apply to the Court for an exemption from
payment of the Court's fees. The application before the Court should contain the
details sought concerning the complaints in suits; the schedule of movable and
immovable property belonging to the claimant with its approximate value; and the
schedule shall be signed and checked in the manner specified for the signature
and verification of the pleadings according to Rule 14 & 15 of Order VI.
Once the application fulfills the above conditions, either the applicant in
person or his designated representative shall properly apply it to the Court
if the applicant is exempted from presence by the Court of First Instance.
Following receipt of the application, the Court may examine in person the
applicant or his agent concerning the validity of the claim and the property
of the applicant.
Order XXXIII, Rule 5 of CPC provides that the Court, in the circumstances
referred to in any of the provisions of clauses (a) to (g) of the Rule shall
refuse the application for leave to sue as an indigent person. Clause (c) of
Rule 5 specifies that an application for permission to sue as an indigent person
shall be rejected by the court if any property has been disposed of fraudulently
or to be able to apply for permission to sue as an indigent person within the
next two months before the submission of the application.
Under Order XXXIII, Rule 7 of CPC provides for the procedure of hearing which
shall be carried by the Court. Any investigation into the problem of the
indigence of such an applicant shall be carried out by the Court. After the
court has heard the claims of the party, processed the evidences and examined
the witnesses, the Court would then either allow the plaintiff to sue as an
indigent individual or refuse to allow him to do so.
Where an application is permitted, it shall be numbered, registered, and
considered to be a complaint in the suit as per Order XXXIII, Rule 8 of the
Any person entitled to file an appeal who is unable to pay the fee charged for
the memorandum of appeal may file an application followed by a memorandum of
appeal and may file an appeal as an indigent person, subject to the provisions
relating to indigent person suits in all matters, including the filing of such
applications, to the extent that those provisions are applicable.
Where an application for appeal as an indigent person is refused according to
Rule 1, the Court may, at the same time as it rejects the application, allow the
applicant to pay the required Court fee within such time as may be fixed by or
extended by the Court from time to time; and upon such payment, the memorandum
of appeal in respect of which that fee is payable shall have the same force and
effect as if the fee had been paid in the first part of the application.
An indigent person is one who, either does not have adequate means to pay court
fees or is not entitled to property worth one thousand rupees. If an Indigent
person fails to pay the court fee in a suit filed by him, the State Government
must bear the remaining damages. If the case was won by the indigent party, then
he should not be held responsible for costs, penalties, or damages.
Basically, what it has provided is the basic provision for the excessively poor
individuals, making it difficult for them to file a suit. The legal approach
behind this agreement is to allow an individual to bring his case of alleged
breach of cause of action to the court, no matter from what their economic
condition is. It not only protects Bonafide cases of an indigent plaintiff by
natural justice but also protects the interest of the revenue and protects the
defendant from legal abuse.
The suggestion of the researchers to slash this hindrance is to educate and
create awareness about such issues. Reduction in the cost of litigation, and
improvement in the quality of justice will make it accessible even for the needy
ones and lastly, Pro-Bono work must be given equal prominence.
- George, James P. "Access to Justice, Costs, and Legal Aid." The American
Journal of Comparative Law 54 (2006): 293-315. Accessed October 24, 2020.
- Thanappan v P. Subramanian, 2019 SCC OnLine Mad 13122.
- Ancient Infra-Tech Pvt. Ltd. v National Buildings Construction
Corporation Ltd., 2019 SCC OnLine Del 8153.
- AIR 1973 Ker 19.
- Halsbury's Laws of England, 4th Edition., Vol 12, P 414.
- (1884) 26 Ch. D. 700 (CA).
- Section 35,35A and 35B, The Code of Civil Procedure, 1908.
- AIR 1979 SC 13690.
- Article 39A, The Constitution of India, 1950.
- Article 14, The Constitution of India, 1950.
- Article 22(1), The Constitution of India, 1950.
- Order XXXIII, Rule 1, The Code of Civil Procedure, 1908.
- Law Commission of India, Costs in Civil Litigation, Report No. 240, May
2012, available at http://lawcommissionofindia.nic.in/reports/report240.pdf (Last
visited October 24, 2020)
- (2010) 8 SCC 1.
- (2009) 2 SCC 656.
- Ms. Komal Audichya and Ms. Nikita Audichya, Expanding Access to Justice
to Reach the Poor and The Marginalized Communities, Bharati Law Review,
Oct-Dec 2016. Last visited: October 24, 2020.
- A.A. Haja Muniuddin v. Indian Railway, (1992) 4 SCC 736.
- Order XXXIII, Rule XVI, The Code of Civil Procedure, 1908.
- Order XXXIII, Rule X, The Code of Civil Procedure, 1908
- Order XXXIII, Rule XI and XI-A, The Code of Civil Procedure, 1908
- Order XLIV, Rule I, The Code of Civil Procedure, 1908
- (2007) 5 SCC 698
 (2001) 5 SCC 22.
 Section 13, The Limitation Act, 1963.
 AIR (1975) All. 286.
 AIR (1991) Ker. 76.
 Dr. Neena Mohan v John Varghese, 2019 SCC OnLine Ker 13269.
 Supra Note at 23.
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October 24, 2020.
 (1916) 35 Ind Cas 46.
 Order XXXIII, Rule 2, The Code of Civil Procedure, 1908.
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 Order XXXIII, Rule 5, The Code of Civil Procedure, 1908.
 Andrews v. Hassan & another, AIR (2006) Ker 427.
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Singh Nanda, 07 Jun 2020, available at https://www.latestlaws.com/articles/all-about-suits-by-indigent-persons-under-code-of-civil-procedure/#:~:text=Thus%2C%20Order%20XXXIII%20enables%20the,to%20institute%20suit%20forma%20pauperis. Last
accessed: October 24, 2020.
 Order XXXIII, Rule 8 Code of Civil Procedure, 1908.
 Order XLIV, Rule 1, The Code of Civil Procedure, 1908.
 Order XLIV, Rule21, The Code of Civil Procedure, 1908.Written By: Aadarsh Lunia and Satya Sai Srija
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