CIVIL PROCEDURE CODE

FINAL PROJECT

Research Topic: FORMA PAUPERIS

SUBMITTED TO - SUBMITTED BY -

Ms. Meeta Mohini Kumar Sambhav

(Faculty Of Civil Procedure Law) Roll No.: 1536
Semester: 5th
Session: 2016-2021

CHANAKYA NATIONAL LAW UNIVERSITY

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 ACKNOWLEDGEMENT

I would like to take this opportunity to express my sincere and profound

gratitude to my guide and mentor for this subject Ms. Meeta Mohini for

her guidance and constant encouragement throughout the course of my

work. She gladly accepted all the pains in going through my work, and

participated in enlightening and motivating discussions, which were

extremely helpful.

I humbly extend my words of gratitude to other faculty members,

teachers and administration of the department for promising me the

valuable help and time whenever it was required.

Kumar Sambhav

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 CONTENTS:

Chapters Page
No.

1. Introduction: Forma Pauperis…………………………….…………..…5

2. Provisions of Indigent Person under Order 33 & Order 44 of

Civil Procedure Code, 1908………………………………………….…..9

3. Suits by Indigent Person : Pauper Suits………………………………..14

4. Appeals By Indigent Person ……………………………….……….…..21

5. Judicial Interpretation : Case Laws …………………………….……..26

6. Conclusion & Suggestions……………………………………..……….30

#BIBLIOGRAPHY

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AIMS & OBJECTIVES
 To Study the Meaning & Definition of Forma Pauperis
 To do an analytical study of Order 33 & Order 44 of CPC, 1908
 To Study about case laws related to Indigent Persons.

HYPOTHESIS
Not only personal liquid assets, but also alternative sources of money should be
considered while deciding Indigent Person.

METHODOLOGY
The researcher has primarily relied on the “Doctrinal Methods”. Various Online
and Offline Sources were used while preparing this project.

SOURCES OF DATA:
The source of data that has been used is mainly secondary source of data.
Extensive use of books, texts, articles and literary works has been made to gather
all the required information about the project topic.

Offline Source:
Books, Articles, Reports etc.
Online Source:
Manupatra, SCCOnline, Westlaw Etc

MODE OF CITATION :
The researcher has used the Universal Mode of Citation.

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 1. Introduction : Forma Pauperis

Forma Pauperis is a Latin phrase that indicates the permission given by a court to an indigent to
initiate a legal action without having to pay for court fees or costs due to his or her lack of
financial resources.1

A plaintiff who files the suit by presentation of plaint pays the required Court fee along with
plaint. Whereas, the person filing a suit as indigent person as to obtain the permission of the
competent Court to file a suit as forma pauperis (indigent person). If the indigent person
succeeds the Court. Government shall have the first charge over the fruits of the suit to recover
Court fee from the indigent person.

The Supreme Court in Mathai M. Paikeday Vs. C.K. Antony 2 has discussed the concept of
'indigent person' as defined under Order 33 of the Code of Civil Procedure, 1908. While
discussing the relevant judgments on the subject, the court held as under: Order 33 of the Code
of Civil Procedure deals with suits by indigent persons whereas Order 44 thereof deals with
appeals by indigent persons. 

The right to sue in forma pauperis is restricted to indigent persons. A person may proceed as
poor person only after a court is satisfied that he or she is unable to prosecute the suit and pay the
costs and expenses. A person is indigent if the payment of fees would deprive one of basic living
expenses, or if the person is in a state of impoverishment that substantially and effectively
impairs or prevents the pursuit of a court remedy.

However, a person need not be destitute. Factors considered when determining if a litigant is
indigent are similar to those considered in criminal cases, and include the party's employment
status and income, including income from government sources such as Social Security and
unemployment benefits, the ownership of unencumbered assets, including real or personal
property and money on deposit, the party's total indebtedness, and any financial assistance

1
West's Encyclopedia of American Law, edition 2. (2008) The Gale Group, Inc.
2
(2011) 13 SCC 174

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received from family or close friends. Not only personal liquid assets, but also alternative
sources of money should be considered.

The Eligibility to sue in forma pauperis is generally that : The burden of establishing indigency is
on the defendant claiming indigent status, who must demonstrate not that he or she is entirely
destitute and without funds, but that payments for counsel would place an undue hardship on his
or her ability to provide the basic necessities of life for himself or herself and his or her family.

Factors particularly relevant to the determination of whether a party to a civil proceeding is

indigent are: 

(1) the party's employment status and income, including income from government sources such
as social security and unemployment benefits; 

(2) the ownership of any unencumbered assets, including real or personal property and monies
on deposit; and finally 

(3) the party's total indebtedness and any financial assistance received from family or close
friends. Where two people are living together and functioning as a single economic unit, whether
married, related, or otherwise, consideration of their combined financial assets may be warranted
for the purposes of determining a party's indigency status in a civil proceeding." 

The object and purpose of Order 33 and Order 44 of the Code of Civil Procedure are to enable a
person, who is ridden by poverty, or not possessed of sufficient means to pay court fee, to seek
justice.3 Order 33 and Order 44 of the Code of Civil Procedure exempts such indigent person
from paying requisite court fee at the first instance and allows him to institute suit or prosecute
appeal in forma pauperis. 

The object of Order 33 & 44 is to enable persons who are too poor to pay court fee to institute a
suit without payment of it. The purpose of the provision is that neither party should evade the
payment of court fee nor no genuine cause of litigant should fail for want of finds.4

3
Kamalatruna v. Karhiyaynani AIR 1973 Ker. 19
4
Venlcatasubbaiah v. Thirupathaiah AIR 1955 Andh, 168

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This Order has been enacted to save triple purposes:

a) To protect the bonafide claims of indigent persons,

b) To safeguard the interest of revenue and
c) To protect the defendants right not to be harassed.

The Law Commission in its 54th Report recommended that the expression 'Indigent Person' should
be used in place of the expression 'Pauper'. Ultimately by the Civil Procedure Code (Amendment
Act) 1976, the word pauper was substituted by Act no.104 of 1976, Sec.81 ; w.e.f 1-2-1977. 5

Order 33 Rule 1 of the Code of Civil Procedure provides for instituting of suits by indigent
person, stating: 
Suits may be instituted by indigent person-- Subject to the following provisions, any suit may be
instituted by an indigent person. 

Explanation I.--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." 

5
International Journal of Research and Analytical Reviews Vol. 4 ISSUE 4 (DEC-2017); ISSN 2348 –1269, P.289

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Order 44 of Code of Civil Procedure provides for instituting an appeal as an indigent person. The
provision reads :- 

Who may appeal as an indigent person - Any person entitled to prefer an appeal, who is unable
to pay the fee required for the memorandum of appeal, may present an application accompanied
by a memorandum of appeal, and may be allowed to appeal as an indigent person, subject, in all
matters, including the presentation of such application, to the provisions relating to suits by
indigent person, in so far as those provisions are applicable." 6

6
Code of Civil Procedure, Mulla , Pg.no :1470-1498

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 2. Provisions of Indigent Person under Order 33 & Order 44
of Civil Procedure Code, 1908

Order 33 Rule 1 of the Code of Civil Procedure provides for instituting of suits by indigent
person, stating: 

Suits may be instituted by indigent person-- Subject to the following provisions, 7 any suit may be
instituted by an indigent person. 

Explanation I.- 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." 

Order 44 of Code of Civil Procedure provides for instituting an appeal as an indigent person. The
provision reads :- 

Who may appeal as an indigent person - Any person entitled to prefer an appeal, who is unable
to pay the fee required for the memorandum of appeal, may present an application accompanied
by a memorandum of appeal, and may be allowed to appeal as an indigent person, subject, in all

7
https://indiankanoon.org/search/?formInput=forma%20pauperis

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matters, including the presentation of such application, to the provisions relating to suits by
indigent person, in so far as those provisions are applicable." If the indigent person fails in suit,
the Court fee shall be paid by him. The Collector is empowered by law to recover the Court fee
as arrears of land Revenue.

Order 33 of C.P.C. deals with the indigent person. A person is an “Indigent person” if-

(i) He is not possessed of sufficient means to enable him to pay the fee prescribed by law for
filing the plaint in a suit, or

(ii) Where no such fee is prescribed, when he is not entitled to property worth one thousand
rupees.

Procedure to file a suit as indigent person:8

Every application for permission to sue as an indigent person should contain the following
particulars-

(i) The particulars required in regard to plaint in suits;

(ii) A schedule of any movable or immovable property belonging to the applicant with the
estimated value thereof; and

(iii) Signature and verification

(iv) The application to be presented by the applicant to the Court in person.

Upon inquiring of the application if and after examination of the applicants and the witnesses,
the Court may either grant the application to sue in forma pauperis (indigent person), or reject
the application.

An order granting leave to sue as an indigent person does not operate as ‘res judicata’ on the
following grounds the Court can dis-pauper the applicant.
8
International Journal of Research and Analytical Reviews Vol. 4 ISSUE 4 (DEC-2017); ISSN 2348 –1269, P.289

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1. If he is guilty of vexations or improper conduct in the cause of the suit; Or

2. If it appears that his means are such that he ought not to continue to sue as an indigent person;
or

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

The Basic Difference between normal Suits and Suits by indigent person is that : A plaintiff who
files the suit by presentation of plaint pays the required Court fee along with plaint. Whereas, the
person filing a suit as indigent person as to obtain the permission of the competent Court to file a
suit as forma pauperis (indigent person). If the indigent person succeeds the Court. Government
shall have the first charge over the fruits of the suit to recover Court fee from the indigent
person.9

An application to sue as an indigent person is a composite document consisting of an unstamped

plaint and an application for permission to sue in forma pauperis. If the application for
permission to sue in forma pauperis is rejected, the plaint still remains and the court may, in its
discretion, allow the petitioner to pay the court fee and in such a case the suit shall be deemed to
have been instituted on the date of presentation of the application. After rejection of the leave,
the court should consider whether the petitioner plaintiff should be given time for payment of
court fee and pass appropriate orders.

When the court sees no reason to reject the application on any of the grounds stated above, it
shall fix a day after notice to the opposite party and the Government pleader for receiving such
evidence as the applicant may adduce in proof of his pauperism, and for hearing any evidence
which may be adduced in disproof thereof.

The court examines the witnesses produced by either party and the applicant or his agent makes a
full record of their evidence and hears arguments and after such hearing may allow or refuse to
allow the applicant to sue as an indigent person. Where the application is granted it is numbered

9
https://indiankanoon.org/search/?formInput=forma%20pauperis

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and registered and deemed the plaint in the suit. The suit then proceeds in the ordinary manner
except that the plaintiff is not liable to pay any court-fee, other than fee payable for service of
process. 10

Order XXXIII, Rule 6 provides that if the court does not reject the application under Rule 5, the
court shall fix a day of which at least 10 days notice shall be given to the opposite party and the
Government pleader for receiving such evidence as the applicant may adduce in proof of
pauperism and for hearing any evidence in disproof thereof.

Under Order XXXIII, Rule 9, it is open to the court on the application of the defendant to
dispauper the plaintiff on the grounds specified therein, one of them being that his means are
such that he ought not to continue to sue as an indigent person.

To what purpose does Order XXXIII, Rule 6, confer the right on the opposite party to participate
in the enquiry into the pauperism and adduce evidence to establish that the applicant is an
indigent person unless the opposite party is interested in the question and entitled to avail himself
of all the normal procedure to establish it.

Where a person, who is permitted to sue as an indigent person, is not represented by a pleader,
the court may, if the circumstances of the case so require, assign a pleader to him. (Order
XXXIII, Rule 9A).

Where the plaintiff succeeds in the suit, 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 a pauper, and such
amount shall be recoverable by the State Government from any party ordered by the decree to
pay the same and shall be a first charge on the subject-matter of the suit. (Ord XXXIII, Rule 10).

A suit by an indigent person or a person claiming to be an indigent person must be regarded as

instituted on the date of the presentation of application for permission to sue in forma pauperis as
required by Rules 2 and 3 of Order XXXIII, C.P.C. When permission to sue as an indigent

10
Order XXXIII, Rules 6-8, Civil Procedure Code, 1908

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person is granted by the court under Order XXXIII, Rule 7, the petition or application must be
regarded as a plaint filed on the day when the application was presented to the court.

Order XLIV Deals with the Appeals made by Indigent Person. The expression "appeal" has not
been defined in the Code. According to dictionary meaning, "appeal" is "the judicial examination
of the decision by a higher court of the decision of an inferior court". Stated simply, appeal is a
proceeding by which the defeated party approaches a higher authority or court to have the
decision of a lower authority or court reversed.

In Nagendra Nath Dry v. Suresh Chandra Dey,11

Speaking for the Judicial Committee of Privy Council, Sir Dinsha Mulia stated: "There is no
definition of appeal in the Code of Civil Procedure, but their Lordships have no doubt that any
application by a party to an appellate court, asking to set aside or reverse a decision of a
subordinate court, is an appeal within the ordinary acceptation of the term." An appeal is thus a
removal of a cause from an inferior court to a superior court for the purpose of testing the
soundness of the decision of the inferior court. It is a remedy provided by law for getting the
decree of the lower court set aside. In other words, it is a complaint made to the higher court that
the decree passed by the lower court is unsound and wrong. It is "a right of entering a superior
court and invoking its aid and interposition to redress an error of the court below"

3. Suits by Indigent Person : Pauper Suits

Pauper refers to a person without any property a poor fellow, within the prescribed standard of
the law of a particular country. In the legal proceeding, between two parties one may claim
before the court that he or she is a Pauper, that he or she has no means to pay the court fees and
that the suit may admitted without payment of court fee. In other words, in a pauper suit an

11
(1932) 34 BOMLR 1065

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impoverished person is supported at public expense; an indigent litigant is permitted to sue or
defend without paying costs; an impoverished criminal defendant has a right to receive legal
services without charge. A person is a “pauper” when he is not possessed of sufficient means to
enable him to pay the fee prescribed by law for the plaint in such suit, or, where no such fee is
prescribed, when he is not entitled to property worth Other than his necessary wearing apparel
and the subject-matter of the suit.

Mere reading of the provisions specified in the order gives us an idea that the basic objective of
order 33 is to enable the persons with weak financial position, to avail justice by way of filing
suits or appeals, without the burden of paying court fees. It is unfortunate indeed that in our
democratic system, justice is still a dream for a large part of the population. There is difference
between enacting a law and enforcing the law. Generally, in India, justice becomes available
only to such persons who have sufficient money. The money is needed not only to pay hefty
court-fees but also for the payment of getting legal assistance and meeting other sundry
expenditures. The provisions providing the advantage to file a case without having sufficient
means has been on the statue book for many years but it has only acted as eyewash.

In State of Haryana v Darshana Debi12,

It has been held by the Supreme Court that the provisions of Order 33 apply to tribunals like the
Motor Accident Claims Tribunals which have all the trappings of a civil court. The court must
give the benefit of doubt of imposing the price to enter the court until the Supreme Court reviews
the whole issue of levy of court fees. Whenever, an indigent person would approach the tribunal
with the claim for the compensation for the wrong done to him, the tribunal cannot refuse to
exercise jurisdiction merely because he does not have means to pay the fee.13 Before the
establishments of the claim tribunal a person would have been able to file the suit invoking order
33 of CPC as an indigent person. Now that a Special Claims Tribunal has been established under
the act, it can be said that an indigent person who do not have any means to pay the required fees
are altogether debarred from seeking compensation for the wrong done to them. Access to justice
cannot be denied to an individual merely because she/he does not have the means to pay the
prescribed fees. Such a view would leave indigent person without a remedy.14
12
AIR 1979 SC 855
13
A. A. Haja Muniuddin v. Indian Railways, (1992) 4 SCC 736.
14
ibid.

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A plaintiff suing in a civil court must pay the court fees prescribed by the law for the plaint and
subsequent proceedings in the suit. These fees are prescribed by the Court-Fees Act (7 of

1870). But a person may be too poor to pay the court-fee, and the object of this order is to enable
such a person to bring and prosecute suits without payment of court fees. The object and purpose
of Order 33 of the Code of Civil Procedure are to enable a person, who is ridden by poverty, or
not possessed of sufficient means to pay court fee, to seek justice. Order 33 of the Code of Civil
Procedure exempts such indigent person from paying requisite court fee at the first instance and
allows him to institute suit or prosecute appeal in forma pauperis.15

Before a person can file a suit as an indigent person, she /he should present an application before
the court, acceptance of which is necessary for the person to have the privileges which she/he
would be entitled to as an indigent person. It is not important for the application to be presented
to the court itself, presentation to proper office of the court is also sufficient. The court has to
satisfy itself that the application is filed by a person who does not have sufficient means or who
is a pauper. If the person claiming to be an indigent person, presenting an application for the
same, is exempted from the court, the application can be filed by an authorized agent. An
advocate is an authorized agent within the meaning of this rule.16

After the presentation of the application, the court may examine the applicant regarding the
merits of the claim and whether the applicant comes under the ambit of pauperism or not. The
court may examine other persons, other than applicant but only to ascertain the factor of
pauperism and not regarding the claim. “Under Order XXXIII, the Petitioner who files an
application has to present the application in person. Rule 3 stales that the person who is
presenting the application shall be in a position to answer all material questions relating to the
application and he may also be examined by the court.”17

After the examination, the court may or may not reject the application. Rule 518 of the order
provides for the grounds for rejecting the application. It has been a debatable topic whether the
grounds mention under rule 5 are exhaustive are not. Many of the high courts have conflicting
views regarding the exhaustiveness of the grounds mentioned.
15
Supra. Note 2
16
B. Manikyam v B Ramamurthy AIR 1975 Ori 20.
17
Union Bank of India v Khader Intl. Construction, Appeal (civil) 943 of 1993.
18
Order XXXIII, Civil Procedure Code.

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 1) The first ground is if the application is not in compliance with rule 2 and 3, then the
application is deemed to be rejected. Utmost good faith is required of the petitioner in the
matter of disclosure of his assets and an intentional departure from this rule must result in
the dismissal in the application.19 But if the omission is not intentional, is done in good
faith, then the application will not be dismissed. If the inclusion or omission of the
property doesn’t affect the position of the person as an indigent person, then the inclusion
will be treated as one done in good faith. The proper procedure to be followed is to return
the petition for amendment and then enquire whether the inclusion would affect the
position of petition as pauper.20 Failure to calculate the court-fee value also leads to
rejection of the application, it being not with accordance to rule 2 and 3 of order. If there
is no attachment of the schedule of the movable and immovable property and its
estimated value, belonging to the applicant, to the application, and the collector showed
in its report that the person has sufficient movable property, then it would be against what
is provided in rule 2, and hence the application will be rejected in such a case too.21
2) The second ground is when the applicant is not an indigent person. If the court ius not
satisfied that the person filing the application is not an indigent person, then under rule 5,
the court can reject the application. In the case of Abdul Khalique v Yasmin Sultan22, a
petition was filed by a woman, for the dissolution of the marriage, recovery of dower
debt and recovery of gold and silver ornaments. The petition was file under order 33, rule
1 to sue as an indigent person. The court held that the wife can file the suit as an indigent
person as she did not had sufficient means, because she was made to leave her
matrimonial house without her gold and silver ornaments, in a state of advanced
pregnancy.
3) The third ground is when there is fraudulent disposal of property. It means that if the
applicant, two months before filing the application, has disposed off her/his property to
make herself/himself eligible to sue as an indigent person, then the application of such a
person will be rejected under this rule.23
4) The fourth ground is when there is no cause of action. The court has to ascertain whether
19
RL Nathan v PK Ojha AIR 1976 Pat 127.
20
Ramdas Sahu v Ramchandra AIR 1957 Pat 562.
21
Powsulph (India) Pvt. Ltd. v Inventa Technical and Ors., AIR 1995 Ori 291.
22
AIR 1986 Ori 189.
23
Sibasankar Tiadi vs Koli Tihadhiani And Ors, AIR 1964 Ori 106.

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 the application shows a good subsisting cause of action capable of enforcement in court
and calling for an answer, and not barred by the law of limitation or any other law. 24 In
the case of Kamu alias Kamala Ammal v M. Manikandan and Anr.25, it has been held
that “It is, therefore, obvious that the application for permission to sue as an indigent
person has to be rejected and could not be allowed if the allegations in the plaint do not
show a cause of action”. The question as to the extent and scope of an inquiry as regards
the existence of a cause of action under clause (d) came up for consideration before the
Supreme Court, and the law was thus stated26:

“But in ascertaining whether the petition shows a cause of action, the Court does not
enter upon a trial of issues affecting the merits of the claim made by the petitioner. It
cannot take into consideration the defences which the defendant may arise on the merits,
nor is the court competent to make an elaborate inquiry into doubtful or complicated
questions of law or fact. If the allegations in the petition, prima facie, show a cause of
action, the court cannot embark upon an enquiry whether the allegations are true in fact,
or whether the petitioner will succeed in the claims made by him. By the statute, the
jurisdiction of the court is restricted to ascertaining whether on the allegations a cause
of action is shown; the jurisdiction does not extend to trial of issues which must fairly be
left for decision at the hearing of the suit.”
5) The fifth ground is where there is transfer of interest in subject matter of proposed suit. It
means where the applicant has entered into any agreement relating to the subject matter
of the concerned suit under which any other person has obtained interest in such subject
matter.
6) The sixth ground is where there is bar of any law for the time being in force. It means that
when there is an allegation in the application which shows that the suit would be barred
27
by the law for the time being in force, then the application will be rejected. to decide
whether the application should be rejected or not, the court has to look at the allegations
present in the application, it was held in the case of Western India Plywood Ltd v

24
Kamu v M Manikandan (1998) 8 SCC 522.
25
(1998) 8 SCC 522.
26
Vijay Pratap v Dukh Haran Nath AIR 1962 SC 941.
27
Sukadeolal Banka and Anr. v Jogeswar Prasad Sharma and Anr. AIR 1986 Ori 144.

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 Pashokan28, that where the suit is barred under section 53 of the Employees State
Insurance Act, 1948, the application under order 33, rule 1 is also not maintainable.
7) The last ground is when there is an agreement to finance the litigation. If the whole
process of litigation is financed by a third person, it would act as a reason for rejecting
the application. When the application as been carefully scrutinized by the court and every
ground for rejecting it has been negated, the court shall fix a day on which it would direct
the applicant to present the evidences which may prove that the applicant is an indigent
person. Atleast ten days notice should be given to the opposite party and the government
pleader regarding the same. Evidence should be confined only to the question of
pauperism and not extend to the merits of the case. 29 The notice is also a mandatory
provision which should be carried out by the court. If a notice of ten clear days is not
given, the defect is fatal and any finding recorded by the court is illegal and must be set
aside.30

Rule 7 says about allowing or refusing the applicant to file the suit as an indigent person after
considering the evidences produced by the applicant or of the opposite party. This stage is
reached only after the court has issued the notices under rule 6 and served on them.31

Provisions of rule 8 relate only to proceedings in the original court and do not apply to
applications for revision in the high court. Where pursuant to a preliminary decree, accounts
were taken of the amounts due to the plaintiff for mesne profits, and on that a finding was
recorded by the court and this was followed by an order directing the payment of court- fees, on
the amount found due, it was held that such an order could not be made as the suit must be
deemed to be pending until a final decree was passed. There is a conflict in the judicial opinion
as to whether a court can authorise to make a suit before granting leave on the basis of indigent
nature. The Patna High Court has held that a decision on the question of jurisdiction can be given
in Order 7 rule 10, only in a suit and that there is no suit until leave is granted. 32

Rule 9 provides for contingency where the plaintiff though originally permitted to sue as an
indigent person ceases to be an indigent person subsequent to the institution of the suit. If the
28
(1997) 7 SCC 638.
29
Abdul Wakil Khan v Bibi Talimunnissa, AIR 1950 Pat 517.
30
Radhika Prasad v Shyama Charan, AIR 1966 Pat 387.
31
Province of Orissa v Dibyasingh Nand AIR 1941 Pat 594.
32
Gupteshwar v Chaturanand AIR 1950 Pat 309

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plaintiff ceases to be an indigent person then he shall be ordered to pay the court fee which he
would have done if he would have had to if a non-indigent person. It is a matter of discretion by
the court if they would like to dispauper the plaintiff. 33 Application under this rule should be
disposed of before the suit is decided. It is not sound practise to dispauper the plaintiff while the
suit is going on. Where leave to sue was ggiven after notice to the defendant, who did not appear,
an application by him under this rule to dispauper the plaintiff on the ground that he was
possessed of sufficient means on the date of application is not maintainable. The matter of
pauperism is co-related with payment of court fees. The state government is principally
concerned with the payment of court fees. 34

Rule 10 applies only when suit has been permitted to be instituted in forma pauperis. The charge
is to be enforced by an application for the attachment and sale of the subject-matter of the suit. A
separate suit for the sale of the subject-matter to realise the court-fees is now barred. 35 The right
to realise the court fee is not merely because the property for the recovery of which the pauper
suit was brought has passed from the hands of the judgement –debtor into the hands of the
pauper decree-holder.36

If the plaintiff is directed to pay the court-fees, the government may realise the same by an
application for execution against the person or property of the plaintiff and if the defendant is
directed to pay the court – fees, the government may realise the same by an application for
execution against the person or property of the defendant. Hence if the amount of the court-fees
is not paid, the government is not entitled to sell the decree obtained by the plaintiff for the
purpose of recovering. Receiver can be appointed to realise court-fees even out of future
maintenance subject to the safeguards as to payment of a sufficient sum for maintenance of the
party liable to bay the court fee. 37 if the plaintiff succeeds in the suit and the amount payable
under the decree by the defendant is paid into court , the government is entitled to payment of the
court-fees out of the fund in the court on a mere application for payment without attaching the
fund for the first time. There is no separate provision for the case in which a pauper plaintiff has
partly succeeded and partly failed.

33
Ananga Bhusan v. Ghanashyam AIR 1951 Ori 349
34
Jeypore Evangical Lutheranchrch v Samuel Santhi Kumar Chaudhary AIR 1985 Ori 195
35
Babui v Secy of State (1919) 4 Pat LJ 166
36
Ibid.
37
Province of Orissa v Rangamma AIR 1950 Ori 220

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 4. Appeals By Indigent Person

Order XLIV of Code of Civil Procedure provides for instituting an appeal as an indigent person.
The provision reads :- 

Who may appeal as an indigent person - Any person entitled to prefer an appeal, who is unable
to pay the fee required for the memorandum of appeal, may present an application accompanied
by a memorandum of appeal, and may be allowed to appeal as an indigent person, subject, in all
matters, including the presentation of such application, to the provisions relating to suits by
indigent person, in so far as those provisions are applicable." 

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Under rule 1 of Order 44 the question that comes up is whether the applicant is an indigent
person or not. No question on the merit of the case does not arise here at this stage . A rejection
of the applicant under rule 1 can only means that the court is not satisfied about the claim of the
applicant that he is an indigent person. It does not amount to a finding that the appeal is not fit
for admission on merits. 38

The Calcutta High court has held that the word “Person” does not imply Company. The Orissa
High Court however held that the meaning of the expression ‘Person’ is to be given a liberal
meaning. As a juristic person the company is entitled for exemption from court fees. 39

RULE 1: WHO MAY APPEAL AS INDIGENT PERSON

Any person entitled to prefer an appeal, who is unable to pay the fee required for the
memorandum of appeal, may present an application accompanied by a memorandum of appeal,
and may be allowed to appeal as an indigent person, subject, in all matters, including the
presentation of such application, to the provisions relating to suits by indigent persons, in so far
as those provisions are applicable.

RULE 2: GRANT OF TIME FOR THE PAYMENT IF COURT FEE

Where an application is rejected under rule 1, the court may, while rejecting the application,
allow the applicant to pay the requisite court fee, within such time as may be fixed by the court
or extended by it from time to time; and upon such payment, the memorandum of appeal in
respect of which such fee is payable shall have the same force and effect as if such fee had been
paid in the first instance.

RULE 3: INQUIRY AS TO WHETHER APPLICANT IS AN INDIGNENT PERSON

(1) Where an applicant, referred to in rule 1, was allowed to sue or appeal as an indigent person
in the court from whose decree the appeal is preferred, no further inquiry in respect of the
question whether or not he is an indigent person shall be necessary if the applicant has made an
affidavit stating that he has not ceased to be an indigent person since the date of the decree

38
Ram Sarup v. Union of India AIR 1983 SC 1196
39
(1999) 1 Cal LT 502

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appealed from; but if the government pleader or the respondent disputes the truth of the
statement made in such affidavit, an inquiry into the question aforesaid shall be held by the
Appellate Court, or, under the orders of the Appellate Court, by an officer of that court.

(2) Where the applicant, referred to in rule 11, is alleged to have become an indigent person
since the date of the decree appealed from, the inquiry into the question whether or not he is an
indigent person shall be made by the Appellate Court or, under the orders of the Appellate Court,
by an officer of that court unless the Appellate Court considers it necessary in the circumstances
of the case that the inquiry should be held by the court from whose decision the appeal is
preferred.

WHO MAY APPEAL: RULE 1

Any person entitled to prefer an appeal, who is unable to pay court fee required for the
memorandum of appeal, may present an application accompanied by a memorandum of appeal,
40
and may be allowed to appeal as an indigent person. Before the Amendment Act of 1976,
certain restrictions were imposed on the right of an indigent person to prefer an appeal under
sub-rule (2) of Rule 1. It provided that the court shall reject the application to appeal in forma
pauperis, unless it is shown that the decree is contrary to law, or to some usage having the force
of law, or is otherwise erroneous or unjust. Those restrictions were considered to be unjust,
unfair, discriminatory and without any rational basis41. The Law Commission,42 therefore,
recommended that the said provisions be deleted. The said recommendation of the Law
Commission was accepted and, accordingly, sub-rule (2) of Rule I was deleted. The present
position is that an indigent person may also file an appeal on all the grounds available to an
ordinary person. An indigent person can also file cross-objections.

PAYMENT OF COURT FEES: RULE 2

The rejection of an application for leave to appeal as an indigent person does not ipso facto result
in the rejection of the memorandum of appeal filed along with the application. 43 It only means
that the court is not satisfied about the claim of the applicant that he is an indigent person and

40
http://lawtimesjournal.in/suit-by-a-pauper/ on 16.09.2018
41
Law Commission's Fifty-fourth Report at P. 313
42
Ibid.
43
State of Tamil Nadu v. John Mathew, AIR 1955 TC 209 (FB); Shahzadi Begam v. Alakh Nath, AIR 1935 All 620

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 44
nothing more. Rule 2 empowers the court to grant time for payment of court fees when the
application for leave to appeal as an indigent person is rejected

INQUIRY: RULE 3

RULE 3 Rule 3 provides that where the appellant was allowed to sue as an indigent person in the
trial court, no fresh inquiry is necessary if the applicant files an affidavit to the effect that he has
not ceased to be an indigent person since the date of the decree appealed from. However, if the
government pleader or the respondent disputes the truth of the statement made in such affidavit,
an inquiry into the question as to whether or not the applicant is an indigent person shall be held
by the appellate court, or under its order by an officer of that court45.

Where it is alleged that the applicant became an indigent person after the date of the decree
appealed from, the inquiry into the means of the applicant shall be made by the appellate court or
under its order by an officer of that court or by the trial court if the appellate court considers it
necessary in the circumstances of the case.46

POWER AND DUTY OF COURT

At the stage of hearing of an application, the question to be considered by the court is whether
the applicant is an indigent person. If he is, the application will be allowed and the memorandum
of appeal will be registered. If he is not, the application will be rejected.47

LIMITATION

The period of limitation for presenting an application for leave to appeal as an indigent person to
the High Court is sixty days and to other courts is thirty days. The limitation starts from the date
of the decree appealed from.48

LETTERS PATENT APPEAL

44
Ram Sarup v. Union of India, AIR 1983 SC 1196
45
Rule. 3(1)
46
Rule. 3(2)
47
Ram Sarup v. Union of India AIR 1983 SC 1196
48
Limitation Act, 1963

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There is difference of opinions as to whether a Letters Patent Appeal lies against an order
granting or refusing to grant leave to appeal as an indigent person. The majority opinion,
however, is that an appeal is maintainable against such orders. The expression "appeal" as used
in Order 44 is very wide and comprehensive and includes a Letters Patent Appeal. The phrase
"any person entitled to prefer an appeal" takes within its sweep not only the persons who are
entitled to prefer an appeal as of right but also the persons who can file an appeal with the leave
of the court.49

Any question relating to the merits of the case does not arise for consideration at that stage. If the
application is granted, then the memorandum of appeal would have to be registered as an appeal
and disposed of in accordance with law.

When the appeal is posted for admission the appellant has to satisfy the Court that the appeal
merits admission. At that stage the appellant may draw the attention of the court not merely to
the judgment and decree appealed from but also to all the relevant records in the case to
substantiate his claim that the appeal deserves to be admitted. Rule 2 of Order XLIV as it now
stands, requires that where an application is rejected under Rule 1 thereof the Court may while
rejecting the application allow the applicant to pay the requisite court fee within such time as
may be fixed by the court or extended by it from time to time and, upon such payment, the
memorandum of appeal in respect of which such fee is payable shall have the same force and
effect as if such fee had been paid in the first instance. If the requisite court fee is paid the appeal
has to be registered and posted for admission.

A rejection of the application made under Rule 1 of Order XLIV now can only mean that the
court is not satisfied about the claim of the applicant that he is an indigent person and nothing
more.50 It does not, however, amount to a finding that the appeal is not a fit one for admission on
merits. Otherwise Rule 2 of Order XLIV which permits payment of court fee after the
application under Rule 1 is rejected, would become meaningless. Since what was rejected was
the application under Rule 1 of Order XLIV of the Code of Civil Procedure, the High Court
should have made an order as required by Rule 2 thereof granting time to the appellant to pay the
requisite court fee and permitting him to prosecute the appeal. The High Court failed to do so
49
. K.Y. Sodamma v. K. Gunneswarudu, AIR 1973 AP 295; Chandel Ranjit Kunwar v. Hiralal, AIR 1972 MP 133.
50
International Journal of Research and Analytical Reviews Vol. 4 ISSUE 4 (DEC-2017); ISSN 2348 –1269, P.292

24 | P a g e
even when an application was made for that purpose. The order of the High Court was clearly
unsustainable.

Appeals from Interlocutory Orders:

As a general rule of law no appeal lies against an interlocutory order which is not sufficient to
dispose of the suit as a whole, except where an appeal is expressly provided. The best test to
ascertain whether an erroneous interlocutory order has affected the ultimate decision on the
merits is to see whether the court would have come to the same decision had the erroneous order
not been passed. There are interlocutory orders which can be challenged in an appeal against the
final decree. As said above, they are of such a nature as would or might have induced the court to
alter its decision; for instance, an order refusing to admit a document which is in law admissible
or to examine a witness or to issue a commission or some such act which is calculated ultimately
to influence the decision of the court on the merits.

Then there are interlocutory orders against which no appeal has been provided for and even they
can be challenged in an appeal from the decree in the manner set forth in S. 105 of the Code of
Civil Procedure.

5. Judicial Interpretation : Case Laws

1. Ram Sarup vs. Union Of India:51

In this case The appellant filed a suit as an indigent person in the Subordinate Court questioning the
validity of an order dismissing him from service. The said suit was dismissed after contest. He filed an
appeal in the High Court as a pauper along with an application under Rule 1 of order 44 Code of Civil
Procedure requesting that he may be allowed to appeal as an indigent person. The application was
dismissed by a Single Judge by a one word order "dismissed". The appellant thereupon made an
application praying for permission to pay the requisite court fee and to prosecute the appeal. That
application was also dismissed by the same Judge on the ground that as the application for leave to appeal
as an indigent person was dismissed on merits, and not on the ground that the applicant was not an

51
(1983) 4 SCC 423: AIR 1983 SC 1196

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indigent person, there was no question of granting time to the applicant to pay court fee. Thereafter the
appellant filed an appeal in Supreme Court.

Supreme Court set aside the order of the High Court passed on May 3, 1982 in Case No. 525 of 1981 and
remanded the case to it to pass an order granting time to the appellant to pay the court fee as required by
Rule 2 of Order 44 of the Code of Civil Procedure and to dispose of the case in accordance with law
without being influenced by the circumstance that it had been rejected earlier on merits as observed by the
learned Single Judge.

2. Vijay Pratap Singh v. Dukh Haran Nath Singh52

An application to sue in forma pauperis is but a method prescribed by the Code for institution of
a suit by an indigent person without payment of fee prescribed by the Court Fees Act. If the
claim made by the applicant that he is an indigent person is not established the application may
fail. But there is nothing personal in such application. The suit commences from the moment an
application for permission to sue in forma pauperis as required by Order XXXIII of the Code of
Civil Procedure is presented, and Order I, Rule 10 of the Code of Civil Procedure would be as
much applicable in such a suit as in a suit in which court-fee had been duly paid.

There is nothing in Order XXXIII, C.P.C. which prevents an applicant from telling the court that
although he had prayed for permission to sue in forma pauperis, he is now in possession of funds
and would like to pay the court fee on the application treating it as a plaint.

Thereby, in effect, the applicant withdraws his prayer for permission to sue as an indigent person
and requests the court not to apply the provisions of Order XXXIII to him If the court agrees,
and, generally in practice the court does agree, to treat the application as a plaint, in view of the
fact that it contains all the necessary particulars required in a plaint, there would be no objection
to the suit being treated as one instituted by the presentation of a plaint.

52
AIR 1962 SC 941

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Where the plaintiff fails in the suit or is dispaupered, or where the suit is withdrawn or dismissed
for default on failure of the plaintiff to pay f postal charges chargeable for the service of the
defendant, the court shall order the plaintiff, or any person added as a co-plaintiff to the suit, to
pa the court-fees which could have been paid by the plaintiff if he had been permitted to sue as
an indigent person. (Order XXXIII, Rule 11).

By refusing the application for forma pauperis, the proceedings are no terminated by the trial
court. If the plaintiff fails to pay the court fees within the time fixed, the trial court has to make
an order for rejection the plaint. The trial court cannot also pass an order for rejection of the
plaint if an appeal against the order of the trial court refusing the application for forma pauperis
is pending in the High Court.

It w accordingly directed by Hon. M.L. Bhat, J. of the Allahabad High Court that proceedings in
the trial court shall continue until the decision of the appeal in the High Court regarding
pauperism. The trial of the suit in the trial court shall be subject to any order which may be
passed in the appeal by the High Court. The disposal of the suit shall, however, depend on the
decision of the appeal.

3. Ganga Dahal v. M.T. Gaura53

A division bench of the Allahabad High court has held that under Rule 10 of Order 33 of the
CODE OF CIVIL PROCEDURE, 1908, the legislature deals with the case of a pauper plaintiff
who succeeds in the suit and under Rule 11 with the case of a pauper plaintiff who fails in the
suit. There is no separate provision for a case like the present, in which a pauper plaintiff has
partly succeed and partly failed. Presumably the court is intended to deal with such a case by
combining the provision of the two Rules. It is clear that, if plaintiff who is permitted to institute
the suit as an indigent person succeeded in the part in a suit, the court fee payable by him for the
suit, the court fee payable by him on the plaint or memorandum of appeal has to be apportioned
between the plaintiff and the defendant in the proportion to the success of the each party.
Therefore the liability of the plaintiff who sued as indigent person or in the “forma pauperis” to
pay the court fee if he succeeds entirely in the suit and to pay the court fee in proportion to the
success if he succeeds partly in the suit under the provision of Rule 10 and to pay the entire court
53
(1916) 35 Ind Cas 46

27 | P a g e
fee if he fails in the suit under Rule 11 of the Order 33 of the present code and under the
analogous provisions for the previous code is well established.

4. A.A. Haja Muniuddin v. Indian Railways,54

The Court has observed in Para 5 of Judgement that “Access to justice cannot be denied to an
individual merely because he does not have the means to pay the prescribed fee." 

5. Union Bank of India v. Khader International Construction , 55

The Court has held that : Order 33 CPC is an enabling provision which allows filing of a suit by
an indigent person without paying the court fee at the initial stage. If the plaintiff ultimately
succeeds in the suit, the court would 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 and that amount
would be recoverable by the State from any party ordered by the decree to pay the same. It is
further provided that when the suit is dismissed, then also the State would take steps to recover
the court fee payable by the plaintiff and this court fee shall be a first charge on the subject-
matter of the suit. So there is only a provision for the deferred payment of the court fees and this
benevolent provision is intended to help the poor litigants who are unable to pay the requisite
court fee to file a suit because of their poverty. Explanation I to Rule 1 Order 33 states that an
indigent person is one who is not possessed of sufficient amount (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. It is further provided that where no such fee
is prescribed, if such person 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 he
would be an indigent person." 

6. R.V. Dev v. Chief Secretary, Govt. of Kerala, 56

54
(1992) 4 SCC 736
55
(2001) 5 SCC 22
56
(2007) 5 SCC 698

28 | P a g e
The Court has held that : Order 33 of the Code of Civil Procedure deals with suits by indigent
persons whereas Order 44 thereof deals with appeals by indigent persons. When an application is
filed by a person said to be indigent, certain factors for considering as to whether he is so within
the meaning of the said provision are required to be taken into consideration therefor. A person
who is permitted to sue as an indigent person is liable to pay the court fee which would have
been paid by him if he was not permitted to sue in that capacity, if he fails in the suit at the trial
or even without trial. Payment of court fee as the scheme suggests is merely deferred. It is not
altogether wiped off." 

6. CONCLUSION & SUGGESTIONS

To sum up, the indigent person, in terms of explanation I to Rule 1 of Order 33 of the Code of
Civil Procedure, is one who is either not possessed of sufficient means to pay court fee when
such fee is prescribed by law, or is not entitled to property worth one thousand rupees when such
court fee is not prescribed. In both the cases, the property exempted from the attachment in
execution of a decree and the subject-matter of the suit shall not be taken into account to
calculate financial worth or ability of such indigent person. Moreover, the factors such as
person's employment status and total income including retirement benefits in the form of
pension, ownership of realizable unencumbered assets, and person's total indebtness and
financial assistance received from the family member or close friends can be taken into account
29 | P a g e
in order to determine whether a person is possessed of sufficient means or indigent to pay
requisite court fee. Therefore, the expression "sufficient means" in Order 33 Rule 1 of the Code
of Civil Procedure contemplates the ability or capacity of a person in the ordinary course to raise
money by available lawful means to pay court fee.

A person is indigent if the payment of fees would deprive one of basic living expenses, or if the
person is in a state of impoverishment that substantially and effectively impairs or prevents the
pursuit of a court remedy. However, a person need not be destitute. Factors considered when
determining if a litigant is indigent are similar to those considered in criminal cases, and include
the party's employment status and income, including income from government sources such as
Social Security and unemployment benefits, the ownership of unencumbered assets, including
real or personal property and money on deposit, the party's total indebtedness, and any financial
assistance received from family or close friends. Not only personal liquid assets, but also
alternative sources of money should be considered." 

The term 'Appeal' has not been defined in C.P.C. whoever files pn appeal is called 'Appellant'. If
the defendant files an appeal he is known as 'Appellant/Defendant'. if the Plaintiff files the
appeal before the higher Court, he is known as 'Appellant/Plaintiff.' The other party who has to
answer is called 'Respondent', viz. 'Respondent/ Plaintiff or 'Respondent/Defendant. Appeal is a
creature of statute and it is not an inherent right to the subject.. Therefore, an appeal can be filed
only where it is expressly provided by a statute. Contrary to this there is an inherent right in
every person to bring a suit of civil nature.

Appeals can be made by indigent persons as per the rules provided under Order 44 of Civil
Criminal Procedure Code.

The object of Order 33 & 44 is to enable persons who are too poor to pay court fee to institute a
suit without payment of it. The purpose of the provision is that neither party should evade the
payment of court fee nor no genuine cause of litigant should fail for want of finds.

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 BIBLIOGRAPHY

BOOKS:
 The Code of Civil Procedure by M. P. Jain
 The Code of Civil Procedure; Vol. III, by Mulla
 Code of Civil Procedure; Vol. II, by S. C. Sarkar
 Sarkar’s Civil Court Practice and Procedure Manual by Sudipto Sarkar
 The Code of Civil Procedure (CPC) by M.P. Tandon, revised by Shailender
Malik
 Code of Civil Procedure by C.K. Thakker
 Civil Procedure Code by C.K. Takwani

31 | P a g e
JOURNALS:

 International Journal of Research and Analytical Reviews Vol. 4

ISSUE 4 (DEC-2017); ISSN 2348 –1269

WEBSITES:
 WWW.INDIANKANOON.COM
 WWW.MANUPATRA.COM
 WWW.SCCONLINE.COM
 WWW.LAWTIMESJOURNAL.COM

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