Introduction (Order XXXIII & XLIV)
The Constitution of Pakistan provides for the fundamental right of equal opportunity before
the law and equality before the law. In Pakistan, there is a large section of society that is so
poor that they don't even have sufficient means to sustain their lives. A suit filed by such
people would eventually be dismissed owing to their condition of not being able to pay
the requisite fees. However, in order to safeguard the interests of all and serve justice,
there are certain provisions in Civil Procedure Code that comes to their rescue.
Order XXXIII of the Code of Civil Procedure, 1908, is one such example of Legal Aid
rendered to the Indigent Persons which inter-alia provides for the institution of Civil Suits
by Indigent Persons. Initially, the expression “Pauper” was being used but later it was
replaced with the expression “Indigent Person”.
Access to justice should not be denied merely because of a person’s inability to pay for it.
Order 33, thus provides for suits filed by the indigent person. Order 33 provides nonpayment of court fees by people who are unable to pay it due to financial constraints and
allows them to institute suits without payment of the court fees.
MEANING OF INDIGENT
The dictionary meaning of the word ‘indigent person’ refers to a person who is
suffering from extreme poverty, impoverishment, or one who lacks the basic
resources required in normal life. In legal parlance, an indigent person does not possess the financial capacity to pay the court fee. With the motive of providing
justice to such individuals, provisions under Order 33 of the Code of Civil
Procedure, 1908 were introduced.
● Rule 1- 18 of Order XXXIII of the Code of Civil Procedure deals with the suits
filed by indigent persons.
● Indigent means poor, penniless, pauper. 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.
● Order XXXIII of the Civil Procedure Code provides remedy to those who need to
institute a suit for the enforcement of their rights but are so poor that they cannot
afford expenses on court fees etc. The object behind this order is that poverty
should not come in the way of getting justice.
● A person may sue as an indigent person only when the court so permits him. When
the application is made for permission to sue as an indigent person, every inquiry
shall be made in the first instance.
● An application for permission to sue as an indigent person shall contain the
following particulars
1. Particulars received in regard to plaint in a suit.
2. List of movable/immovable property belonging to the applicant with the estimated value.
3. Signature and Verification.
As soon as a civil suit is filed in the court, the plaintiff(s), at the time of filing their plaint,
are required to submit the requisite court fees as directed by the Court Fees Act, 1870.
However, Order XXXIII of the Code of Civil Procedure saves indigent persons by way of
discharging them from the liability to pay the required court fees. It then allows such
individuals to institute the suit in forma pauperis which is subject to some conditions as
postulated under the Rule 1 of Order XXXIII of CPC.
Procedure to file a suit as an indigent person
Before filing a suit as an indigent person begins, it is important to add all the relevant
contents in the application seeking permission to be an indigent person [Rule 2]. As per
Rule 2 of Order XXXIII, the application must include the particulars similar to what is
mentioned in the plaint and all movable or immovable properties of the indigent
person/applicant along with its estimated value.
The indigent person/applicant shall himself in person present the application before the
court. In case, such a person is exempted from appearing in the court, an authorized agent
may present the application on his behalf. In certain circumstances where there are two or
more plaintiffs, the application can be presented by any of them. [Rule 3]. The suit begins
as soon as the application to sue as an indigent person is duly presented before the court.
Subsequently, the indigent person/applicant is examined by the court. However, if the
applicant is being represented by his agent, then in such a case, the court may examine
the applicant by the commission [Rule 4].
➢ Where the application is in proper form and duly presented, the court may
examine the applicant or his agent regarding the merits of the claims and property
of the applicant.
➢ To sue as an indigent person, 7 days before notice in writing shall be given to the
defendant. The court shall decide a date for adducing evidence in support of the
application. After the satisfaction of the court, it shall be deemed the plaint in the
suit, and the suit shall proceed as a suit instituted in an ordinary manner.
➢ For this purpose, he may present an application to the court, along with a
memorandum of appeal. The court may allow the applicant to appeal as an
indigent person, subject to the provisions relating to suits by indigent persons.
➢ The application for leave to appeal as an indigent person must be filed within 30
days. But in case of appeal before the High Court, such a period is 60 days from the date of the decree when passed.
➢ If there is no reason to reject the application, the court shall fix a day for receiving
evidence in proof or disproof of the indigence of the applicant. At least 10 days
clear notice shall be given to the opposite party and the government pleader.
Rejection of application
As per Rule 5 of Order XXXIII of CPC, the court will prima facie reject an application
seeking permission to sue as an indigent person in the following cases:
1. In case when 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 XXXIII. Rule 2 and Rule 3 deal with the contents of the
application and its presentation respectively.
2. The application can be rejected by the court in case the applicant is not an indigent
person.
3. The application can be rejected by the court when the applicant has fraudulently
disposed of any property within two months before the presentation of the
application. It can also be rejected when the applicant dishonestly applies only
with the motive of just seeking permission from the court to sue as an indigent
person.
4. The court possesses the power to reject the application filed by an indigent person
in an instance where there is no cause of action.
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.
Rejection of application is done when the allegations indicate that the suit is barred by
any law.
Rejection of application is done in cases where any other individual enters into an
agreement with the applicant to help him financially in the litigation.
Costs associated with the suit
Order XXXII Rule 16 of CPC states that the costs in the suit will include the costs of an
application to sue as an indigent person as well as the cost of inquiry into indigency.
● When an indigent person succeeds: According to Rule 10 of Order XXXIII, where
the plaintiff (indigent person) succeeds in the suit, the court shall calculate the
amount of court fees and costs and recover the same from the plaintiff in the
manner as if he had not been permitted to sue as an indigent person. In case the
plaintiff (indigent person) fails to pay the amount, then in such case, the amount
shall be recoverable by any such party that was ordered by the decree.
● Where an indigent person fails: According to Rule 11 and Rule 11-A Order
XXXIII where the plaintiff (indigent person) fails or the permission granted to the
indigent person is withdrawn under Rule 9A, or where the suit is withdrawn or
dismissed, the court shall in such case either order him (plaintiff) or a co-plaintiff
to pay court fees and costs in the manner as if he had not been permitted to sue as
an indigent person. Where the suit abates on account of the death of a plaintiff,
such court fees would be recovered from the estate of the deceased plaintiff.
According to Rule 12 of Order XXXIII, the state government possesses the right to apply
to the court to pass an order concerning payment of court fee to be paid under Rule 10.
● Rule 13 deals with cases where the state government shall be deemed to be a party
to suit.
● Rule 14 provides that the court shall recover the court fee by forwarding the order
or decree to the collector who shall then collect the fee in the manner as if it were an arrear of land revenue.
● In case if the application to sue as an indigent person is refused, he shall still
possess the right to file a suit in an ordinary manner. However, such a person shall
be denied to file an application of similar nature in respect of the same matter
(Rule 15.)
● Rule 17 provides that any defendant (indigent person) who wishes to file a set-off
or counterclaim shall be permitted to do so.
● Rule 18 states that apart from Order XXXIII of the Code, the state or the Central
Government may make additional provisions for free legal services in respect of
indigent persons.
Procedure to Sue as an Indigent Person if Application is Admitted
1. Where the application for permission to sue as an indigent person is granted, it
shall be numbered and registered. It shall be deemed the plaint in the suit, and the
suit shall proceed as if it was instituted in an ordinary manner.
2. But the plaintiff shall not be liable to pay any court fee or process fee. The plaintiff
shall also not be liable for any fee for the appointment of a pleader.
3. If a person has been allowed to sue as an indigent person, but he is not represented
by a pleader, the court may assign a pleader to him.
4. The defendant or government pleader may apply to the court for the withdrawal of
permission granted to the plaintiff.
Rejection of Application
The Court shall reject an application for permission to sue as an indigent person
1. Where it is not framed and presented in the manner prescribed by rule 2 and rule 3, or
2. Where the applicant is not an indigent person, or
3. Where 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:
Provided that no application shall be rejected if, even after the value of the property
disposed of by the applicant is taken into account, the applicant would be entitled to sue
as an indigent person, or
4. Where his allegations do not show a cause of action, or
5. Where he has entered into any agreement with reference to the subject matter of the
proposed suit under which any other person has obtained an interest in such subject
matter, or
6. Where the allegations made by the applicant in the application show that the suit would be barred by any law for the time being in force, or
7. Where any other person has entered into an agreement with him to finance the
litigation.
APPEAL BY INDIGENT PERSON
Under Order 44 there are 3 Rules which deal with the provisions regarding the Appeals
by the Indigent Persons. Order 44 rule 1 says that the provisions of order 44 are subject,
in all matters, including the presentation of such application, to the provisions of Order
33 insofar as they are applicable.
Who may file an appeal:
Order 44 Rule 1 says that if any person entitled to prefer an appeal, who is unable to pay
Court fees required for Memorandum of appeal, may present an application accompanied
by a memorandum of appeal, and may be allowed to appeal as an indigent person.
Grant of time for payment of Court-fee:
Where an application is rejected under Rule 1 does not mean that the Memorandum of
appeal is also rejected. Here it only means that the court is not satisfied with the claim of
the applicant that he is an indigent person and nothing more. Rule 2 empowers the court
to grant the time to the applicant for payment of the court fees within such time as may be
fixed by the court or extended by it from time to time.
Rule 3 Inquiry:-
Under Rule 3 if the appellant was allowed to sue as an indigent person in trial court, then
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
an affidavit, inquiry 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 court.
And in second situation, where the applicant alleged that he became an indigent person
after the date of the decree appealed from, the enquiry into the means of the applicant
shall be made by the appellate court or under its order by an officer of that code, or by the
trial court if appellate court considers it necessary in the circumstances of the case.
Limitation:
The period of limitation for presenting an application for leave to appeal as an indigent
person to the High Court is 60 days and to other court is 30 days. The limitation starts
from the date of the decree appealed from.
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