Order XXXIII of the Civil Procedure Code talks about suits by indigent persons.

Section 304 of Criminal Procedure Code, and

Article 39A of the Indian Constitution respectively mention, Legal aid to accused at state expense in certain cases, and equal justice and free legal aid.

Indigent person meaning: Rule 1

A person is an “indigent person”

• if he is not possessed of sufficient means to enable him to pay the fee prescribed by the law for the plaint in such suit; or
• (ii) where no such fee is prescribed, when he is not entitled to property worth thousand rupees. In both the cases, the property exempt from attachment in execution of a decree and the subject-matter of the suit should be excluded.

Explanation- Indigent means: Poor, Penniless, Pauper Or A person is an indigent person who is not having sufficient means to pay the fee for the plaint or where no such fee is prescribed, he is not entitled to property worth rupees 1,000.

“SUFFICIENT MEANS” MEANING

The Expression “Sufficient means” contemplates ability or capacity of a person in ordinary course to raise money by available lawful means to pay court-fee.

Objective

The provision of order 33 of CPC intend to enable indigent person to institute and prosecute suit without the payment of fee to court. This provision exempts such person from paying court fee at the first instance and allow them to institute their suit, provided that if he satisfies certain conditions laid down in order 33.

Order 33 has been enacted to serve three purposes:

(i) to protect bona fide claims of indigent person;

(ii) to safeguard interest of revenue; and

(iii) to protect defendant from harassment.

Contents of application: Rule 2

Every application for permission to sue as indigent person shall contain following:

1. The particulars required in regard to plaints in suits

2. A schedule of movable and immovable property belonging to the applicant with their estimated value.

3. Signature and verification as provided in Order 6 Rules 14 and 15.

The application should be presented to the court in person unless exempted by the court. Where there is more than one plaintiff, it can be presented by any of them.

The suit commences from the moments an application to sue is forma pauperis (in the manner of a pauper) is presented.

Rejection of application: Order 33 Rule 5

As per Rule 5 of Order 33 of CPC, the court will prima facie reject an application seeking permission to sue as an indigent person in the following cases:

1. Where 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. or

2. Where the applicant is not an indigent person; or,

3. Where the applicant has, within 2 months before the presentation of application has disposed of any property fraudulently or in order to get permission to sue as an indigent person; or,

4. Where there is no cause of action; or

5.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. 

6. Where the suit appears to be barred by law; or

7. Where any other person has entered into an agreement with the applicant to finance costs of the litigation.

Inquiry: Rule 1-A

An inquiry of the applicant shall be made by the Chief Ministerial Office of the court. The court may either adopt the report presented by the office or may itself make an inquiry.

When the application submitted is in proper from and duly represented, the court may examine the merits of the claim and property if the applicant. The court shall then issue a notice to the opposition party and to the Government Pleader and will fix a day for receiving the evidence. If any witness has been produced before the court on such date, the court shall hear their arguments and either allow or reject the application.

Where Permission Granted: Ruled 8-9 – A

Where the application is granted, such application shall he deemed to be a plaint in the suit and the suit shall proceed in ordinary manner, except that the plaintiff will not have paid the court fees or process fees.

The Central Government and State Government may make provisions for rendering free legal aid and services to indigent person to prosecute their case, and under the same provisions, a pleader may he assigned by the Court to an indigent person, if he is not represented by one.

Where Permission is Rejected: Rule 15 – 15-A

Where the application to sue as an indigent person is rejected by the Court, it shall grant the applicant time to pay the court fees. An order refusing to allow an applicant to sue as an indigent person shall be a bar to subsequent similar claims. However, this does not bar the person from suing in an ordinary manner, provided that he pays for the costs incurred by Government Pleader and opposition party in opposing the claims.

Revocation of Permission: Rule 9

The court may, on the application by the defendant or by Government Pleader, revoke permission granted to plaintiff(s) under the following cases:

1. Where he is guilty or vexatious or improper conduct in the course of suit, or

2. Where his means are such that he ought not continue to sue as an indigent person, or

3. Where he has entered into an agreement under which another person had obtained interest in subject-matter of the suit.

Costs: Rule 16

The costs of an application to sue as an indigent person shall be cost of the suit.

Recovery of Court fees and Costs:

A. Where indigent person succeeds- in such case, the court shall calculate the amount of the court fees and costs and recover from the party as ordered by the Court. (Rule 10)

B. Where indigent person fails- where the indigent person fails or his suit abets, the court shall order him to pay court fees and costs. (Rule 11,11- A)

Right of State Government: Rule 12, 13

The State Government has the right to recover court fees and for that purpose, it shall be deemed to be a party to the suit.

Realisation of Court Fees: Rule 14

Where an indigent person succeeds in suit, the State Government can recover court fees from the party as per the direction in the decree and it will be the first charge on the subject-matter of the suit.

Where the indigent person fails in suit, the court fees shall he paid by him and where the suit abets on account if his death, such court fees would he recovered from the estate of the deceased person.

Set-off or Counter Claim: Rule 117

An indigent person can plead for set-off or counter claim without paying the court fees.

Appeal: Order 43, Rule 1

An order rejecting an application to sue as an indigent person is appealable.

Appeal: Order 44

A person who is unable to pay the court fees on memorandum of appeal may apply to appeal as an indigent person. The inquiry as prescribed under Order 33 will be made before granting or refusing the prayer. However, in the case where the appellant was allowed to sue as an indigent person before the trial court, no fresh inquiry shall he needed if he files an affidavit that he continues to be an indigent person.