Analysis of Order 33, Rule 5 CPC

An Analytical Study of Order 33, Rule 5 of the Code of Civil Procedure, 1908: Grounds for Rejection of Applications to Sue as an Indigent Person

Introduction

The Code of Civil Procedure, 1908 (CPC) in India, under Order 33, provides a mechanism for individuals who are unable to pay the requisite court fees to institute and prosecute suits. This provision, often referred to as suing in forma pauperis, embodies the cherished principle of access to justice, ensuring that poverty does not become an insurmountable barrier to seeking legal remedies. The Supreme Court in A.A Haja Muniuddin v. Indian Railways (1992 SCC 4 736) emphasized that "Access to justice cannot be denied to an individual merely because he does not have the means to pay the prescribed fee." This sentiment was echoed in Ruckmani v. Venkataraj (Madras High Court, 2012), highlighting the benevolent object of Order 33.

While Order 33 facilitates access, it also incorporates safeguards to prevent abuse of this concession. Order 33, Rule 5 CPC plays a crucial role as a gatekeeping provision, enumerating specific grounds upon which an application for permission to sue as an indigent person shall be rejected by the Court. This article undertakes a comprehensive analysis of Order 33, Rule 5, examining its various clauses through the lens of judicial pronouncements and established legal principles in India, drawing significantly from the provided reference materials.

The Legislative Framework of Order 33, Rule 5

Order 33, Rule 5 of the CPC mandates the Court to reject an application for permission to sue as an indigent person in the following circumstances:

  • (a) where it is not framed and presented in the manner prescribed by rules 2 and 3, or
  • (b) where the applicant is not an indigent person, or
  • (c) 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 where the applicant has disposed of any property during the said period of two months and the value of the property so disposed of is not sufficient to enable him to pay the court-fee, the Court may, for reasons to be recorded in writing, permit him to sue as an indigent person, or
  • (d) where his allegations do not show a cause of action, or
  • (e) 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
  • (f) 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
  • (g) where any other person has entered into an agreement with him to finance the litigation.

The language of Rule 5 ("The Court shall reject an application...") indicates that if any of these conditions are met, the rejection is mandatory, subject to judicial interpretation of the scope and applicability of each ground.

Judicial Interpretation of Grounds for Rejection under Order 33, Rule 5

Clause (a): Non-compliance with Rules 2 and 3 (Framing and Presentation)

Rule 2 of Order 33 details the contents of the application, requiring particulars of movable or immovable property with estimated value, and it must be signed and verified in the manner prescribed for pleadings. Rule 3 mandates personal presentation of the application by the applicant, with certain exceptions. Clause (a) of Rule 5 provides for rejection if these procedural requirements are not met.

The Andhra Pradesh High Court in MODEGUNTA RAMACHANDRAIAH v. NALABOLU MRUDHULA (Andhra Pradesh High Court, 2025, as per provided material) addressed the rigidity of this clause. It was argued that a literal interpretation, leading to rejection for any defect in the schedule of property or signing/verification, even unintentional omissions, could be unduly harsh. The Court considered that such an interpretation might render Rule 5 constitutionally suspect and suggested that, to save it from constitutional vice, it should be interpreted as directory in certain aspects, particularly concerning unintentional omissions where no advantage is gained. This reflects a judicial inclination to balance procedural compliance with the substantive right to access justice, somewhat analogous to the considerations of "sufficient cause" for procedural defaults discussed in other contexts, such as in Union Of India v. Ram Charan (1964 AIR SC 0 215) concerning abatement, where mere ignorance without lack of negligence was not deemed sufficient.

Clause (b): Applicant Not an Indigent Person

An "indigent person" is defined in Explanation I to Order 33, Rule 1. Clause (b) of Rule 5 mandates rejection if the applicant does not meet this definition. The determination of indigency is a question of fact.

The Supreme Court in Mathai M. Paikeday v. C.K Antony (2011 SCC 13 174), while dealing with Order 44 (Appeals by indigent persons), which has similar indigency criteria, provided significant guidance. The Court held that "sufficient means" refers to the capacity to pay court fees without compromising basic living standards. It clarified that all sources of income, including pension and financial assistance from family members (even if unverified but plausible), must be considered. Failure to disclose assets or income, such as bank passbooks, could lead to an adverse inference. This judgment was followed by the Madras High Court in Ruckmani v. Venkataraj (2012), which reiterated that alternative sources of money, not just personal liquid assets, should be considered.

Furthermore, the scope of "person" who can apply under Order 33 (and thus whose application can be assessed under Rule 5(b)) was clarified in Union Bank Of India v. Khader International Construction And Others (2001 SCC 5 22). The Supreme Court held that "person" in Order 33, Rule 1 includes juristic persons like companies, thus allowing them to sue as indigent persons if they meet the financial criteria.

Clause (c): Fraudulent Disposition of Property

This clause aims to prevent applicants from divesting themselves of property shortly before filing an application merely to qualify as indigent. The two-month period is a critical factor. The proviso offers a degree of flexibility, allowing the court to permit the suit if the disposed property's value was insufficient to cover court fees, provided reasons are recorded. This underscores the court's duty to look into the bona fides of the applicant's financial situation.

Clause (d): Allegations Not Showing a Cause of Action

A fundamental requirement for any suit is the disclosure of a valid cause of action. If the applicant's own allegations, taken at face value, do not reveal a legal basis for the claim, the application to sue as an indigent person must be rejected. The inquiry under this clause is limited.

The Andhra Pradesh High Court in Devireddy Sulochanamma And Others v. Rebala Pattabhiramireddy Charities And Others (2004 SCC ONLINE AP 621) extensively discussed this, holding that the court's examination should be confined to the allegations in the plaint (application). It is not permissible to conduct an elaborate inquiry into the defence raised by the opposite party at this stage. The court cited the Supreme Court's decision in Vijai Pratap Singh v. Dukh Haran Nath Singh (AIR 1962 SC 941) to support the principle that the court should ascertain whether the allegations made in the petition show a cause of action. The general understanding of what constitutes a cause of action, as explored in cases like Yallawwa (Smt) v. Shantavva (Smt) (1997 SCC 11 159) in the context of its survival, informs this assessment, though the direct issue in *Yallawwa* was different.

The Madras High Court in Arakchand Kankaria v. Amarchand Kankaria And Others (1961 SCC ONLINE MAD 49) clarified that rejection under this ground (or a similar pre-amendment clause) is warranted only if the "suit as a whole" shows no cause of action, not merely if one or more prayers appear unsustainable while others do disclose a cause of action. By analogy, the Orissa High Court's discussion in Lalchetty Mahalakshmi v. Devala Nagamani (1970) concerning Order 44, Rule 1(2) (appeal in forma pauperis), which involves a prima facie assessment of the decree's erroneous character, also suggests a summary examination rather than a detailed adjudication at this preliminary stage.

Clause (e): Champertous Agreements (Applicant's Agreement)

This clause targets situations where the applicant has entered into an agreement concerning the subject matter of the suit, under which another person has acquired an interest. Such agreements, known as champertous agreements, are discouraged as they can lead to speculative litigation and pervert the course of justice. The rationale is that if a third party has a financial stake in the outcome, the applicant might not be truly indigent or the suit might be pursued for collateral purposes.

Clause (f): Suit Barred by Law

If the applicant's allegations themselves demonstrate that the proposed suit would be barred by any existing law (e.g., law of limitation, res judicata), the application must be rejected. This prevents the court's time from being wasted on suits that are non-starters.

The Kerala High Court in Mercantile Credit Corporation Ltd. And Another v. K. Sathyan (1997 SCC ONLINE KER 9) explicitly held that if, from the averments in the application, the claim appears to be barred by limitation, the court is bound to reject the application under Order 33, Rule 5(f). As with clause (d), the inquiry is based on the applicant's averments, and the principle from Arakchand Kankaria (that the suit "as a whole" must be barred) would apply. The limited scope of inquiry discussed in Devireddy Sulochanamma is also pertinent here.

Clause (g): Third-Party Agreement to Finance Litigation

This clause is similar to clause (e) but focuses specifically on agreements where another person has undertaken to finance the litigation. This again points to the possibility that the applicant is not genuinely indigent or that the litigation is being driven by a third party's interests, which the provisions of Order 33 are not intended to support.

Procedural Aspects and Scope of Inquiry

The rejection under Order 33, Rule 5 often occurs at a preliminary stage, sometimes ex parte or after a limited examination of the applicant under Order 33, Rule 4. The Madhya Pradesh High Court in Baliram Shukul v. Mt. Sitabai Shukul (1935) drew a distinction between an ex parte rejection under Rule 5 and a refusal under Rule 7 (after hearing evidence on pauperism and merits of the application). This distinction is crucial because Order 33, Rule 15, which bars a subsequent application of a like nature, applies to an "order refusing to allow the applicant to sue as a pauper" (typically under Rule 7), not necessarily to all rejections under Rule 5, particularly those on purely formal grounds without a decision on indigency.

The scope of inquiry at the Rule 5 stage is generally confined. As established in Devireddy Sulochanamma and supported by older cases like Bai Chandan v. Chhotalal Jekisandas (Bombay High Court, 1932) (which noted that evidence under Rule 7 is primarily on pauperism), the court does not conduct a mini-trial on the merits of the suit or delve deep into the defendant's potential defences. The focus is on the application, the applicant's statements, and any report called for (e.g., from a revenue officer regarding means, as seen in the procedural recount in Shub Lata Petitioner v. Bimla Devi & Ors. (2012 SCC ONLINE DEL 1269)).

It is noteworthy that some of the provided reference materials, such as Chinnammal And Others v. P. Arumugham And Another (1990 SCC 1 513) concerning bona fide purchasers in judicial sales, Hardeodas Jagannath v. Income-Tax Officer, Shillong And Others (Gauhati High Court, 1959) on service of summons, and cases dealing primarily with Order 38 (e.g., Global Company. v. National Fertilizers Ltd (Delhi High Court, 1998), Humbi Hema Gooda v. Tamil Nadu State Transport Corporation (Cbe) Ltd. (Madras High Court, 2011), Palghar Rolling Mills (P) Ltd. v. Visveswarayya Iron And Steel Ltd. (Karnataka High Court, 1985)), do not directly bear on the interpretation of Order 33, Rule 5, though they address other important procedural aspects of the CPC.

The Balancing Act: Access to Justice v. Prevention of Abuse

Order 33, Rule 5 serves a dual purpose. On one hand, it acts as a filter to prevent the abuse of the benevolent provisions intended for genuinely indigent persons with bona fide claims. It ensures that court resources are not expended on applications that are improperly framed, made by non-indigent persons, tainted by fraud or champerty, or disclose no cause of action or are clearly barred by law.

On the other hand, the judiciary has consistently interpreted its provisions, especially in borderline cases or where procedural lapses are minor and unintentional (as suggested in MODEGUNTA RAMACHANDRAIAH), in a manner that promotes access to justice. The overarching goal, as affirmed in A.A Haja Muniuddin and Ruckmani v. Venkataraj, is to ensure that poverty does not close the doors of the court to those with legitimate grievances. Therefore, while the grounds for rejection in Rule 5 are mandatory, their application requires careful judicial scrutiny, ensuring that the spirit of Order 33 is upheld.

Conclusion

Order 33, Rule 5 of the Code of Civil Procedure, 1908, is a critical provision that delineates the circumstances under which an application to sue as an indigent person must be rejected. Judicial interpretations have clarified the scope of each ground, emphasizing a limited inquiry at this preliminary stage, primarily based on the applicant's averments and particulars. The courts have strived to balance the imperative of providing access to justice for the indigent with the need to prevent the misuse of this facility. While the rule is couched in mandatory terms, its application demands a judicious approach, ensuring that bona fide applicants are not unduly hindered by overly technical interpretations, while effectively filtering out applications that do not meet the statutory criteria or are otherwise an abuse of the process of the court. The careful application of Order 33, Rule 5 is thus essential for maintaining the integrity and efficacy of the legal aid mechanism embedded within the CPC.