Introduction: Poverty cannot restrict the right to justice
Section 304 of CrPC, 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. The concerned provisions of CPC are: Order XXXIII (Suits by indigent persons) and Order XLIV (appeals by indigent persons). In A. Haja Muniuddin v. Indian Railways, the court held that "Access to justice cannot be denied to an individual merely because he does not have the means to pay the prescribed fee."

If someone needs to file a lawsuit to enforce their rights but is so impoverished that they are unable to pay for court costs and other related charges, Order 33 of CPC offers them recourse. This order is based on the principle that access to justice should not be impeded by poverty.

In Alifiya Husenbhai Keshariya v. Siddiq Ismail Sindhi & Ors (2024), the apex court held that these provisions "exemplify the cherished principle that lack of monetary capability does not preclude a person from knocking on the doors of the Court to seek vindication of his rights."

Thus, the poverty shall not be a bar to the right to justice.

Who is Indigent person
An indigent person is someone who does not have the financial means to pay the Court fee and proceed with the suit filed.

The Supreme Court in Union Bank of India v. Khader International Construction, held that Indigent refers to someone who is impoverished, destitute, and without money. If a person is considered impoverished and lacks the necessary funds to pay the plaint charge, or if no fee is specified, they are not eligible to receive property valued at one thousand rupees.

Inquiry of indigence:
The Chief Ministerial Officer of the court is authorized to conduct an investigation, per Rule 1A of Order 33. The initial purpose of the inquiry is to determine whether or not the petitioner is impoverished. The court has the option of accepting the report provided by this kind of officer or conducting its own investigation.

The Hon'ble Supreme Court in ML Sethi v. RP Kapoor, observed that the provisions of Order 11 Rule 12 involving the discovery of documents would apply to proceedings under Order XXXIII of the CPC.

Order 33 Rule 6: Court issues notice and fixes a day where applicant advances his proof of indigency, OP and Govt pleader present their evidence opposing the applicant's indigency.

Filing a suit: Scope has been broadened
The Supreme Court in Sushil Thomas Abraham V. M/S Skyline Build through its partner & Ors (2019), ruled that the trial court's dismissal of a plaintiff's application under Order 33 Rule 1 of CPC, which sought permission to institute the suit as an indigent person, did not preclude the plaintiff from filing an application or appeal under Order 44 Rule 1 of the Code and requesting permission from the appellate court to file an appeal on his behalf.

In Lakshmi v Vijaya Bank (2010): the respondent questioned indigency of the petitioner, R.V. Ramana who filed petition under Order 33 Rule 1 and Rule 7. The petitioner died before he was cross-examined. The petitioner's wife filed an application as LR. The trial court observed that the LRs won't be permitted to substitute the indigent person as the right to sue as an indigent person is a personal right. However, the high court admitted the application filed by the LR and allowed them to file the petition as indigent persons.

The representation:
Only when the court permits, one can file a lawsuit on behalf of the indigent. Every investigation must be done first when a request is submitted for authorization to file a lawsuit on behalf of an impoverished person. The following information must be included in an application for permission to sue on behalf of an indigent person: (i) Information received with reference to the suit's plaint; (ii) The applicant's inventory of both movable and immovable property, together with an estimated valuation; (iii) Verification and Signature.

The Allahabad High Court in Shadaan Ansari v. State of UP & Ors (2020), held that while prosecuting an indigent person who cannot afford to engage of lawyer, the court must provide him with "real and meaningful" free legal aid.

The court will help the destitute person by assigning him a pleader, according to Rule 9A of the Code. A pleader is a person who has the right to appear in court and make arguments on behalf of other people.

Benefits to file the suit as indigent

1. While recapitulating the principles to be followed by courts while granting bail, Himachal Pradesh High Court in Prakash Chand v. State of Himachal Pradesh (2019), emphasized that poverty or the deemed indigent status of an accused must be considered while granting bail.
2. Rule 15 allows the indigent person to file the suit in the usual manner if their application to file as an indigent person has been refused by the court.
3. Rule 17 allows the defendant indigent person to file a set-off or counterclaim.

Prescribed Manner (Rule-2 and Rule-3)

• According to Rule 2 of Order 33, any moveable or immovable properties of the impoverished person/applicant, along with an estimate of their value, must be included in the application, along with details identical to those stated in the plaint.
• Rule 3: The petitioner who is impoverished must personally bring the application to the court. If such an individual is excused from attending court, the application may be submitted on their behalf by a designated representative. Any of the plaintiffs may submit the application in specific situations involving two or more of them.

Commencement

• Rule 4: As soon as the court receives a properly submitted application from an individual seeking indigence, the lawsuit can commence. The court then examines the petitioner or impoverished person. But in the event that the applicant is represented by an agent, the court may allow the commission to question the applicant.

Rejection

• In Dhanalakshmi v. Saraswathy, a similarity was drawn between Order 33 Rule 5 CPC and Order VII Rule 11 CPC. While Order VII Rule 11 is used in the rejection of plaint, Order 33 Rule 5 deals with the rejection of an application filed for permission to sue as indigent persons.
• Grounds for rejection under Rule 5:
  • Application not in prescribed manner
  • No cause of action
  • The Kerala High Court in Jagadamma v. Sheela and Anr (2021), laid down the principle that a plaintiff who filed a suit as an indigent was to explain omissions in the properties listed. The application can be rejected if the inquiry shows the person is not indigent, dishonest, or sold their property in the last two months.
  • Intent to defraud the court, i.e., interest of a third party due to an agreement with the applicant.
  • Barred by any other law. The Supreme Court in Solomon Selvaraj vs Indrani Bhagawan Singh (2022), observed that an application to sue as indigent under Order 33 Rule 1 of CPC can be rejected if it is found that the suit is barred by res judicata.

Revoke of Indigency (Rule-9)
The court, using its discretionary power, may receive application for revoke from OP (defendant or Govt. Pleader). The grounds for revoke are: (i) the grounds for rejection arise during the course of the suit, such as dishonesty, interest of 3rd party etc; and (ii) the applicant ceases to be indigent during the course of the suit as held by the Kerala High Court in R. Jayaraja Menon v. Dr. Rajakrishnan & Anr.

Cost of the Suit
As per Rule 16, order 32 of CPC the cost of the suit includes the costs of an application to sue as an indigent person as well as the cost of inquiry into indigency. Rule 12 allows the state government to apply for an order directing recovery of court fees. Rule 10 provides for recovery of the cost from the indigent person, if he succeeds the suit. Rule 11 and 11-A deals with recovery of the cost from the indigent person in the case he fails in the suit, or the suit is withdrawn or dismissed, or the permission has been withdrawn u/s 9A, and from his/her estate in case of death.

Conclusion
Order 33 of CPC is based on the fundamental right to access to justice. The person unable to pay the court fees is termed as indigent person. The indigent person makes the application in the prescribed manner, and the court holds hearing for admission as per Rule 7. After the application is admitted, the suit continues as a normal suit as discussed in Rule 8 of Order 33 of CPC. Order 33 provides for guarantees the right for indigent people as well as against the misuse of the provision.

Supreme Court in Union Bank of India v. Khader International Construction, held order 33 as a benevolent provision which is for the deferred payment of court fees, which is meant to assist low-income litigants who are unable to pay the required court charge in order to file a lawsuit due to their poverty. Also, Rule 18 allows the Government to make free legal aid for indigent person.

References:

1. https://blog.ipleaders.in/analysis-of-order-33-of-cpc-suits-by-indigent-persons/
2. https://www.livelaw.in/gsearch?q=updates+on+suits+by+indigent+person