Code of Civil Procedure, 1908 (CPC)
Order XXXIII CPC: Suits by Indigent Persons
Court fee is charged on the value of a claim, and a person with a good case and no money cannot pay it. Order XXXIII of the Code of Civil Procedure, 1908 removes that barrier, allowing a person who qualifies as indigent to institute a suit without paying the fee. It does not forgive the fee: it postpones it, and recovers it at the end from whoever ought to bear it. These notes cover the two tests of indigence, the application and the inquiry into means, the grounds of rejection, withdrawal of the permission, the recovery of court fees, and how the Order differs from legal aid.
The two tests of indigence, the route through the court, and what happens to the fee
1. Who Is an Indigent Person
§ Explanation I to Order XXXIII Rule 1 (in substance) A person is an indigent person — (a) if he is not possessed of sufficient means, other than property exempt from attachment in execution of a decree and the subject matter of the suit, to enable him to pay the fee prescribed by law for the plaint in such suit; or (b) where no such fee is prescribed, if he is not entitled to property worth one thousand rupees, other than the property exempt from attachment in execution of a decree and the subject matter of the suit. Explanation II. Any property which is acquired by a person after the presentation of his application for permission to sue as an indigent person, and before the decision of the application, shall be taken into account in considering the question whether or not the applicant is an indigent person. Explanation III. Where the plaintiff sues in a representative capacity, the question whether he is an indigent person shall be determined with reference to the means possessed by him in such capacity. |
§ Three points on the test Each is regularly examined: • Two exclusions run through both limbs. Property exempt from attachment under Section 60, and the subject matter of the suit, are left out of account. A person is not required to sell the very thing he is suing for in order to fund the suit. • The measure differs by case. Where a fee is prescribed, the question is whether he can pay that fee. Where none is prescribed, the question is the flat figure of one thousand rupees. • Timing. Explanation II brings into account property acquired after the application and before its decision, so an applicant cannot improve his position by timing, and a windfall during the inquiry counts against him. |
2. The Application and the Inquiry
Step | Rule | What happens |
|---|---|---|
The application | Rules 2 and 3 | It contains the particulars required in a plaint, and a schedule of all movable and immovable property belonging to the applicant with its estimated value; it is presented to the court by the applicant in person, unless exempted |
Examination of the applicant | Rule 4 | Where the application is in proper form and duly presented, the court may examine the applicant, or his agent where he is exempted from appearing, regarding the merits of the claim and the property of the applicant |
Notice of the day of inquiry | Rule 6 | Where the court sees no reason to reject the application on any of the Rule 5 grounds, it fixes a day for receiving evidence of the applicant's indigence or in disproof of it, giving at least ten days' notice to the opposite party and to the Government Pleader |
The inquiry | Rules 6 and 7 | On the day fixed, the court examines the witnesses produced by either party, hears any argument on the application, and then either allows or refuses to allow the applicant to sue as an indigent person |
Where the application is granted | Rule 8 | The application is numbered and registered and is deemed to be the plaint in the suit, which proceeds in the ordinary manner except that the plaintiff pays no court fee or fees for service of process |
3. Rejection of the Application: Rule 5
§ Order XXXIII Rule 5: the court shall reject an application Where: • It is not framed and presented in the manner prescribed by Rules 2 and 3; • The applicant is not an indigent person; • He has, within two months next before the presentation of the application, disposed of any property fraudulently or in order to be able to apply for permission to sue as an indigent person: but where he has disposed of property in the ordinary course, the application is not rejected merely on that ground; • His allegations do not show a cause of action; • He has entered into any agreement with reference to the subject matter of the proposed suit under which another person has obtained an interest in it; • The allegations made show that the suit would be barred by any law for the time being in force; • Any other person has entered into an agreement with him to finance the litigation. |
Two of these deserve emphasis. The two-month fraudulent disposal ground is the Code's answer to a person who divests himself of property in order to qualify, and its limit is equally important: a disposal in the ordinary course is not a ground of rejection. And the grounds that the allegations show no cause of action or that the suit would be barred show that the court does a preliminary merits filter at this stage; the State should not carry the cost of a suit that is bound to fail at the threshold.
4. Withdrawal of the Permission: Rule 9
§ Order XXXIII Rule 9, CPC 1908 (in substance) The Court may, on the application of the defendant, or of the Government Pleader, of which seven days' clear notice in writing has been given to the plaintiff, order that the permission granted to the plaintiff to sue as an indigent person be withdrawn — (a) if he is guilty of vexatious or improper conduct in the course of the suit; (b) if it appears that his means are such that he ought not to continue to sue as an indigent person; or (c) if he has entered into an agreement with reference to the subject matter of the suit under which another person has obtained an interest in it. |
Rule 9A completes the picture on the other side: where a person is permitted to sue as an indigent person, the court may assign a pleader to him if he is not represented, and the High Court may make rules for the selection and remuneration of such pleaders and for the withdrawal of assignments.
5. The Fee Is Postponed, Not Forgiven
§ What happens to the court fee at the end Rule 10: where the indigent person succeeds. The court shall calculate the amount of court fees which would have been paid by the plaintiff if he had not been permitted to sue as an indigent person; that amount shall be recoverable by the State Government from any party ordered by the decree to pay it, and shall be a first charge on the subject matter of the suit. Rule 11: where he fails. Where the plaintiff fails in the suit, or the permission is withdrawn, or the suit is withdrawn or dismissed for non-appearance or non-compliance, the court shall order the plaintiff, or any person added as a co-plaintiff, to pay the court fees which would have been paid had he not been permitted to sue as an indigent person. Rule 11A. Where the suit abates by reason of the death of the plaintiff, the court fees are recoverable from the estate of the deceased plaintiff. Rule 12. The State Government has the right at any time to apply to the court to make an order for the payment of court fees under Rule 10, 11 or 11A. Rule 14. Where an order is made under those rules, the court shall forthwith cause a copy to be forwarded to the Collector, who may recover the amount as if it were an arrear of land revenue. |
The scheme is therefore an advance by the State, not a subsidy. The State carries the fee while the suit runs, and recovers it at the end from the losing party if the indigent plaintiff wins, or from the indigent plaintiff himself if he loses, with a first charge on the subject matter to secure it. Rule 15 adds that a refusal to allow a person to sue as an indigent person bars a subsequent application of the like nature in respect of the same right to sue, though the applicant may still sue in the ordinary manner on paying the fee; and Rule 17 allows a defendant to plead a set-off or counterclaim as an indigent person on the same footing.
6. Indigent Person and Legal Aid Compared
Basis | Order XXXIII, suing as an indigent person | Legal aid under the Legal Services Authorities Act, 1987 |
|---|---|---|
What it relieves | The obligation to pay court fee at the time of instituting the suit | The cost of legal representation and related expenses of the proceeding |
Who decides | The civil court, on an inquiry into means under Rules 4 to 7 | The Legal Services Authority at the relevant level, on its own criteria |
The test | Insufficient means to pay the prescribed fee, or property worth less than one thousand rupees, excluding exempt property and the subject matter | Eligibility under Section 12, which covers defined categories such as women, children, members of Scheduled Castes and Tribes, industrial workmen, and persons below a prescribed income |
Is it recovered later? | Yes. Rules 10 and 11 recover the fee from the losing party or from the plaintiff himself | No. Legal services are provided free to an eligible person |
Effect on the suit | The application becomes the plaint and the suit proceeds without fee | A lawyer is assigned and expenses are met; the court fee position is unaffected |
How they connect | Rule 9A allows the court to assign a pleader to an indigent plaintiff who is unrepresented | Section 12 eligibility often overlaps, and Rule 18 contemplates the Government providing free legal services to indigent persons |
7. Landmark Points
- Explanation I to Rule 1. Two tests, both excluding property exempt from attachment and the subject matter of the suit: inability to pay the prescribed fee, or, where none is prescribed, entitlement to property worth less than one thousand rupees.
- Explanation II. Property acquired after the application and before its decision is taken into account.
- Rule 5. Seven grounds of rejection, including fraudulent disposal of property within two months, absence of a cause of action, a suit barred by law, and an agreement to finance the litigation.
- Rule 8. Where permission is granted, the application is deemed the plaint and the suit proceeds without court fee or process fees.
- Rule 9. Permission may be withdrawn for vexatious or improper conduct, for means that no longer justify it, or for an agreement giving another an interest in the subject matter.
- Rules 10, 11 and 14. The fee is recovered from the losing party if the indigent person succeeds, from him if he fails, and in either case through the Collector as an arrear of land revenue.
- Rule 15. A refusal bars a subsequent application of the like nature in respect of the same right to sue, though an ordinary suit on payment of fee remains open.
8. Frequently Asked Questions
Who is an indigent person under the CPC?
A person who is not possessed of sufficient means to pay the fee prescribed for the plaint, or, where no fee is prescribed, who is not entitled to property worth one thousand rupees. In both limbs, property exempt from attachment and the subject matter of the suit are left out of account.
What must an application under Order XXXIII contain?
The particulars required in a plaint, and a schedule of all movable and immovable property belonging to the applicant with its estimated value. It must be presented to the court by the applicant in person, unless he is exempted from appearing.
On what grounds is such an application rejected?
Under Rule 5: where it is not framed and presented as prescribed; where the applicant is not indigent; where he has fraudulently disposed of property within two months before the application; where the allegations show no cause of action or that the suit is barred; where he has agreed to give another an interest in the subject matter; or where someone has agreed to finance the litigation.
Can permission to sue as an indigent person be withdrawn?
Yes. Under Rule 9, on the application of the defendant or the Government Pleader with seven days' clear notice, where the plaintiff is guilty of vexatious or improper conduct, where his means are such that he ought not to continue, or where he has given another an interest in the subject matter.
Does an indigent person escape court fees altogether?
No. The fee is postponed, not forgiven. If he succeeds, Rule 10 makes the fee recoverable by the State Government from the party ordered to pay it, as a first charge on the subject matter. If he fails, Rule 11 requires him to pay it, and it is recovered through the Collector as an arrear of land revenue.
Can a defendant claim a set-off as an indigent person?
Yes. Rule 17 allows a defendant to plead a set-off or counterclaim as an indigent person, subject to the same conditions that apply to a plaintiff.
What is the difference between this and legal aid?
Order XXXIII relieves a person of the court fee, decided by the civil court on an inquiry into means, and the fee is recovered at the end. Legal aid under the Legal Services Authorities Act, 1987 provides free legal representation and expenses to eligible persons, decided by a Legal Services Authority, and is not recovered.
9. Related Topics in This CPC Series
- Order XXV: Security for Costs
- Order XLIV: Appeals by Indigent Persons
- Attachment in Execution: Sections 60 to 64 and Order XXI
- Order VII: The Plaint, Return and Rejection