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Analysis of Order 33 of the Civil Procedure Code. 1908

The notion of justice evokes the rule of law and it refers to the resolution of conflicts by
institutions that make laws and by those that enforce it. Justice implies fairness and the implicit
recognition of the principle of equability [1].Access to justice is inherent in the concept of justice.
The basic purpose which is intended to be served by providing access to justice are is to ensure
that every person is able to invoke the legal processes for redressal, irrespective of social or
economic status or other incapacity. Unless the poor and the weaker section of the society are
able to take advantages of administration of justice and are able to assert for their rights,
democracy cannot be said to be blooming. Legal aid is a noble approach to help the deprived
and underprivileged [2].Legal Provisions in relation to Legal aid can be classified under three
broad categories: (i) Constitutional [3](ii) Procedural [4](iii) Statutory [5]

This article deals with the legal provisions related to Legal aid under the Civil Procedure Code,
1908. Order 33 of CPCprovides for filing of suits by indigent persons. It enables persons who are
too poor to pay court fees and allow them to institute suits without payment of requisite court
fees.

Introduction
Order 33, C.P.C, deals with the suit filed by Indigent persons. Previously, the expression
“Pauper” was used. Further, the expression “Indigent person” was substituted in
places where the word “pauper” had occurred because it was inappropriate particularly
after India wedded to a socialistic pattern of society[6]. It was done in accordance to the
recommendation of the Law commission in its 54th Report[7]. For institution of suits court-fee has
to be paid. But, there are innumerable persons who owing to that poverty are unable to pay the
court-fee, and to enable them to file suits exemption from court-fee is provided for under Order
33 of C.P.C.

The basic object of Order XXXIII was widely discussed by Kerala High Court in Sumathy Kutty
v. Narayani, where it was observed that the real test is 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 for the purpose of paying the requisite court-fee.[8]

The term “Indigent person” has been defined underOrder 33 Rule 1, a person is an
indigent person if he does not have sufficient means other than property excused from
attachment in execution of the degree, to enable him to pay prescribed fees. The Supreme Court
of India in the case of UOI v. Khader International Construction has held that, the word
“person” mentioned in Order XXXIII, Rule 1 includes not only a natural person but other
judicial person such as a public limited company[9].
The claim should be presented to the court by the applicant in person, until he is exempted from
appearing in court in which case the application may be presented by an authorized agent, who
would answer all substantial queries involving the application. The court will examine the
applicant or his agent regarding the merits of the claim and the property of the applicant[10].

Procedure
When the court sees no reason to reject the application on any of the grounds as per Rule 5, it
shall fix a day after notice to the defendant and the Government pleader for receiving such
evidence as the applicant may offer in proof of his indigence, and for hearing any evidence which
may be presented in rebuttal thereof.

The court questions the witnesses produced by both the parties and the applicant or his agent
makes a full record of their evidence and hears arguments and after such hearing the court may
permit or refuse to allow the applicant to sue as an indigent person[11]. Where the application is
approved it is numbered and registered and is considered as the plaint in the suit. The suit then
proceeds in the ordinary manner, however the plaintiff is not liable to pay any court-fee.[12]

Under Order XXXIII, Rule 9, it is open to the court on the application of the defendant to withdraw
the plaintiff’s permission to sue as an indigent person on the grounds specified. Where an
individual, who is allowed to sue as an indigent person, is not represented by a pleader, the court
may, as per the circumstances of the case, allot a pleader to him[13].

Where the plaintiff succeeds in the suit, the court will estimate the sum of court-fees which would
have been paid by the plaintiff if he had not been allowed to sue as an indigent person, and such
amount shall be recoverable by the State Government from any party ordered by the decree to
pay the same[14].

But in a situation where a suit is filled by the indigent person for realization of full contractual
amount from government and decree was passed in favour of plaintiff. Order was issued to
defendant State Government to pay cost of plaintiff as liability was imposed on defendant to pay
court fee payable to Government. Hence, proceedings started against plaintiff for recovery of
court fee was not maintainable[15].

An Anomaly In Order 33 of CPC

When the petition filed asan Indigent person is registered as suit, the plaintiff gets on with the trial
of the case. Either he has to succeedorfail — the inevitable consequences of any litigation. If he
succeedsOrder33, Rule 10 provides that the amount of court-fee shall be recoverable by the
State Government from any party ordered by the decree. This is a reasonable provision and
none can find fault with the procedure set forth in it[16]. The hardship comes to the indigent
person if he fails in the suit. The defeated indigent person at first suffers from the result of the
case. More hardships are in store for him under Rule 11 which provides for a Procedure where
Indigent person fails[17].

The provisions for payment of court-fee set forth in the section can be said to be reasonable
whenthe permission granted to him to sue as an indigent person has been withdrawnorthe suit is
withdrawnordismissed for default, as set forth thereunder. But the penalty of the provision for
payment of court-fee on the plaintiff/indigent person because he fails in the suit on merits is
unjust, shocking and is opposed to the principles of Natural Justice; unjust because he fails in the
suit after contest. His position as an indigent person does not change and the poor does not
become affluent overnight in view of the adverse result. His status remains the same irrespective
of the result of the suit and hisbona fidesdo not undergo any change. The constitutional validity
of the unreasonable provision is a matter to be tested.

Hence, this article suggest that Order 33, Rule 11, C.P.C can be amended deleting the sentence
“Where the plaintiff fails in the suit”.

Conclusion
Thus on the application to sue as indigent person being granted, the plaintiff shall not be liable to
pay court fee and in case he is not represented by a pleader, the Court may assign a pleader to
him if the circumstances of the case so requires. Rule 18 of order XXXIII of the Civil Procedure
Code states that the Central and State Government may make such additional provisions as it
thinks fit for providing free legal services to those who have been allowed to sue as indigent
persons. Rule 15 provides for provisions regarding refusal to allow applicant to sue as indigent
person to bar subsequent application of like nature. The Order XLIV makes provisions in respect
of appeals by indigent persons.[18]

The advocates Act 1961 also makes provision for Bar Council of India in exercise of its rule
making power under Section 49 (1) (C) of the Advocates Act 1961 and under Rule 46 of Chapter
II of part - 6 of the Bar Council of India to make a duty of an advocate to render legal aid to an
indigent person who approach an advocate in his individual capacity. Supreme Court has
emphasized the importance of Legal Aid to the poor and the needy from time to time in cases
like Sheela Barse Vs. State of Maharashtra[19], Sunil Batra V. Delhi
Administration[20]; M.H. Hoskot v. State of Maharashtra[21]; Hussainara Khatoon Vs. State
of Bihar[22] and Khatri Vs. State of Bihar.[23]