Madras High Court
S.Venkatesan vs Sundaram Fasteners Limited on 25 September, 2025
Author: S.M.Subramaniam
Bench: S.M.Subramaniam, Mohammed Shaffiq
CMP.No.19328 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 17.09.2025
PRONOUNCED ON : 25.09.2025
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
AND
THE HONOURABLE MR. JUSTICE MOHAMMED SHAFFIQ
CMP.No.19328 of 2025
in
OSA.SR.No.17760 of 2025
S.Venkatesan
S/o Late Sarangapani,
Shrishi Apartments
No.240, I Cross Street,
III Main Road, Natesan Nagar,
Virugumbakkam, Chennai 600 092
Appellant(s)
Vs
Sundaram Fasteners Limited
Rep By Its Executive Director And
Secretary.,
Mr. V.G. Jaganathan,
No.98-A, Dr. Radhakrishnan Salai,
Mylapore, Chennai 600 004
Respondent(s)
PRAYER
Civil Miscellaneous Petition is instituted under Order XIV Rule VIII of the
Original Side Rules, to permit the applicant to file the appeal as indigent
person capacity.
Page No.1/25
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CMP.No.19328 of 2025
For Appellant(s): Mr.D.Prabhu Mukunth Arun Kumar
For Respondent(s): Mr.P.R.Raman
Senior Counsel for Mr.C.Seethapathy
ORDER
S.M.SUBRAMANIAM, J.
TABLE OF CONTENTS:
S.No. TABLE OF CONTENTS Page No.
IV Procedure for Filing Suits by Indigent Persons 10
V Inquiry into Indigency (Order XXXIII Rule 1-A CPC) 11
VI Scope of Filing Appeals as an Indigent Person 14
despite earlier Rejection of Suit
VII Safeguards Against Abuse: Order XXXIII, Rule 5 18
CPC
VIII Finality of the Officer’s Report and Court’s 20
Supervisory Role in Appeals by Indigent Persons
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The present civil miscellaneous petition has been instituted by the
petitioner seeking permission to file the Original Side Appeal (OSA) in the
capacity of an indigent person.
I. Background of the Case:
2. The facts, in nutshell, show that the suit in CS.No.507 of 2012,
instituted by the respondent herein seeking a direction to pay the plaintiff a
sum of Rs.2,01,62,284/- along with interest, has been decreed. Challenging
the said judgment and decree, an OSA has been preferred. Along with the
OSA, the present petition seeking permission to sue as an indigent person
has been instituted.
3. The learned counsel for the petitioner would mainly contend
that the petitioner has no sufficient means to pay the Court fee, which is
approximately about Rs.22,80,000/-. Since the petitioner has no source of
income, permission is to be granted to prefer the OSA as an indigent
person.
4. The petitioner states that he is not in employment after being
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terminated from the respondent company. He is aged about 66 years and
has no other source of income. He is living out of the help extended by his
relatives and friends.
5. The learned Senior Counsel for the respondents would oppose
by stating that the petitioner possesses properties. The very statement that
he has no source of income is false and incorrect. The bank statements
filed by the petitioner in the typed set of papers along with the OSA would
indicate that the petitioner is having sufficient source of income and during
the years 2024 and 2025, the petitioner has deposited a sum of
Rs.58,06,479.20/- in his accounts. The transaction details would also show
that the petitioner is not an indigent person. Since the bank statements itself
would be sufficient to form an opinion that the petitioner has not made out a
prima-facie case, no further inquiry is required.
6. The learned counsel for the petitioner would reiterate that an
inquiry is contemplated under Order XXXIII and Order XLIV.
7. In reply, the learned Senior Counsel for the respondent would
contend that Order XLIV of CPC read with Order XXXIII is not applicable to
the petitioner, as he does not satisfy the requirements contemplated. The
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petitioner is in possession of the valuable properties, both movable and
immovable. In this context, the learned Senior Counsel relied on the findings
made by the learned Single Judge in paragraph Nos.34 of the impugned
judgment.
8. Under Exhibits P23 and P24, the petitioner had created a
mortgage by deposit of title deeds on the properties covered by two sale
deeds dated 27.10.2003 and 05.09.2008. The property still stands in the
name of the petitioner, and he has filed an affidavit stating that he has not
made any attempt to dispose of the said properties. Even during the suit
proceedings, the petitioner herein has not pleaded anything about his
indigent circumstances. Therefore, the present petition has been filed in
order to circumvent payment of Court fee and thus, liable to be rejected.
9. Rival submissions made between the parties are considered.
II. Who is an Indigent Person ? :
10. “An ‘indigent person’ is defined in Explanation I to Order XXXIII
Rule 1 of the Code of Civil Procedure. The provision contemplates that such
a person is one who does not possess sufficient means to pay the
requisite court fee for filing a suit, or who does not own property worth one
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thousand rupees, excluding necessary wearing apparel and the subject-
matter of the suit, together with such articles as may be deemed essential to
life. Thus, indigence is determined both by the inability to pay court fees and
by the absence of substantial property which could be realized for that
purpose.
11. The Hon'ble Supreme Court in Union Bank of India v. Khader
International Construction1 has clarified that the expression ‘indigent’
refers to one who is impoverished, destitute, and without money, and that a
litigant lacking the necessary funds to pay the plaint charge or entitled to
property of insignificant value alone may qualify as indigent. Accordingly,
the test of indigency is pragmatic, directed at discerning whether the litigant
has the financial capacity to prosecute the claim by paying the prescribed
court fees.”
III. “Sufficient Means” – Meaning
12. The Hon'ble Supreme Court of India in the case of Mathai
M.Paikeday Vs. C.K.Anthony2 discussed about the eligibility of a person to
sue in Forma Pauperis. Paragraph No.17 of the judgment reads as under,
“17) The eligibility of person to sue in forma
1 (2001) 5 SCC 22
2 AIR 2011 SC 3221
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pauperis has been considered in American
Jurisprudence (20 Am. Jur. 2d Costs 100) as thus:
"' 100. Eligibility to sue in forma pauperis;
generally: 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."
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“18. 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.
19.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 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.”
13. The Court further explained that the determination of indigency is
a question of fact, to be examined with reference to the overall financial
position of the applicant. While interpreting Order XLIV, which incorporates
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similar criteria in the appellate stage, the Court observed 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.
14. This principle was subsequently applied by the Madras High Court
in the case of Ruckmani Vs. Venkataraj (2012)3, reiterating that not only
personal liquid assets but also alternative sources of money should be
taken into account.
15. Additionally, the ambit of “person” under Order XXXIII was
clarified by the Hon'ble Supreme Court in the case of Union Bank of India
Vs. Khader International Construction and Others4, wherein it was held
that “person” in Order XXXIII, Rule 1 includes juristic persons like
companies, thus allowing them to sue as indigent persons if they meet the
financial criteria.
3 2012 SCC Online Mad 1991
4 (2001) 5 SCC 22
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IV. Procedure for Filing Suits by Indigent Persons:
16. Order XXXIII of the Code of Civil Procedure prescribes the
manner in which a person claiming indigency may institute a suit. The
procedure can be summarized as follows:
(1) Application (Rule 2): The applicant must file an application in the
form of a plaint, accompanied by a schedule of movable and
immovable property and particulars of indigency.
(2) Inquiry (Rule 1-A): The court, usually through its chief ministerial
officer, conducts an inquiry into the applicant’s means, assets, and
bona fides.
(3) Notice (Rule 6): Prior to admission, notice is issued to the
opposite party, affording an opportunity to contest the claim of
indigency.
(4) Adjudication (Rule 7): Upon considering the inquiry and
objections, the court may allow the application, in which case it is
registered as a plaint and the suit proceeds without initial court
fees.
(5) Rejection (Rule 5): An application may be rejected if it is not in
the prescribed form, if the applicant is found not to be indigent, has
disposed of property to qualify, the plaint discloses no cause of
action, the suit is barred by law, or the subject-matter is transferred
through agreement. In such cases, the applicant remains free to
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file the suit in the ordinary course with payment of court fees.
Whereas, Order XLIV provides for appeals by the indigent persons. It
provides that a person unable to pay Court fee on memorandum of appeal
may apply to allow him to appeal as an indigent person.
V. Inquiry into Indigency (Order XXXIII Rule 1-A CPC):
17. The inquiry contemplated under Rule 1-A is a safeguard to ensure
that the privilege of suing as an indigent person is not misused. The Court,
ordinarily through its chief ministerial officer, conducts an investigation into
the financial capacity of the applicant, including the extent of property
owned, income sources, and the genuineness of the plea of poverty. The
opposite party, upon notice under Rule 6, is entitled to contest the claim and
adduce material to show that the applicant is possessed of sufficient means.
Order XLIV Rule 3 deals with Inquiry as to whether applicant is an indigent
person. In a inquiry into pauperism under Order XLIV Rule 3 the report of
the officer of the court is final. However, on a question of law, the Court can
consider the objections raised with regard to indigent status.
Order XLIV Rule 3 reads as follows:
“3. Inquiry as to whether applicant is an
indigent person.
(1) Where an applicant, referred to in rule 1,
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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 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 the 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.”
18. Order XLIV Rule 3 has been inserted by 1976 Amendment in the
interests of expedition.
(A) Two Situations:
Rule 3 covers two different situations:
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(a) Already indigent at trial:
If the applicant was already declared indigent in the Trial Court, now
for appeal, he just files an affidavit saying he is still indigent.
No fresh inquiry is needed unless the learned Government Pleader or
the respondent challenges the truth of that affidavit.
(b) Became indigent after decree:
If the applicant was not indigent at trial but claims he became indigent
after the decree appealed from, then an inquiry must be held.
That inquiry is conducted either:
by the Appellate Court itself, or
by an officer of that Court,
unless the Appellate Court directs the original Trial Court to hold the
inquiry.
(B) Who conducts the inquiry?
Sub-rule (2) says the Appellate Court can entrust the inquiry to an
officer of its Court.
Compare this with Order XXXIII Rule 1A (also added in 1976): there,
for indigent suits at the trial stage, the inquiry is to be made first by the
chief ministerial officer, whose report the court may adopt or re-
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examine.
In Order XLIV, there is no express mention like this , but that doesn’t
mean the appellate court must blindly accept the officer’s report. The
appellate court still has discretion: it can adopt the report, reject it, or
conduct its own independent inquiry.
VI. Scope of Filing Appeals as an Indigent Person Despite Earlier
Rejection of Suit:
19. The Hon'ble Supreme Court of India has clarified that dismissal of
an application to file a suit as an indigent person under Order XXXIII CPC
does not bar the same person from seeking permission to appeal as an
indigent under Order XLIV CPC.
20. In Sushil Thomas Abraham Vs. M/s Skyline Build. Thr. Its
Partner and Others5, decided on 07.01.2019, the issue before the Court
was whether the High Court was justified in rejecting the appellant’s prayer
to file an appeal under Order XLIV Rule 1 on the ground that the
appellant’s earlier application to file a suit as an indigent person under
Order XXXIII Rule 1 had been dismissed by the Trial Court.
5 (2019) 3 SCC 415
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21. The Hon'ble Supreme Court held that such reasoning was
incorrect. The question of whether the appellant possessed sufficient
means to pay the requisite court fees must be determined through an
inquiry under Rules 4 to 7 of Order XXXIII CPC, regardless of any previous
rejection at the trial stage.
22. The Court explained that under Order XLIV, if a person had
previously been allowed to sue as an indigent person at trial, no fresh
inquiry is necessary provided the applicant files an affidavit affirming
continued indigency. However, in cases where the applicant was not
allowed to sue as an indigent person previously, the Appellate Court
must independently examine the claim.The Court meticulously analyzed the
interplay between Orders XXXIII and XLIV CPC, and clarified the procedure
for determining indigency at the appellate stage as follows:
“23. Order 44 of the Code applies to appeals.
By virtue of Order 44 Rule 1 of the Code, the
provisions of Order 33 are made applicable to such
appeals.
24. Order 44 Rule 3(1) of the Code prescribes
the procedure in relation to the inquiry which is
required to be held to decide the question as to
whether the applicant, who has filed the
application/appeal under Order 44, can be declared as
an indigent person or not. The Rule says that where
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the applicant is already allowed by the trial court to
sue as an indigent person then in such circumstances,
no further inquiry in respect of the question as to
whether he is an indigent person or not is necessary
provided such person files an affidavit stating therein
that he has not ceased to be an indigent person since
the date of decree appealed from.
25. However, if the government lawyer disputes
the statement of the applicant made in the affidavit,
then the inquiry into the question as to whether he is
an indigent person or not shall be held by the
appellate court or officer of the court.
26. Order 44 Rule 3(2) of the Code provides
that where the applicant referred to in Order 33 Rule
11 is alleged to have become indigent person since
the date of the decree appealed from then the
appellate court shall hold an inquiry into the question
as to whether the applicant has become an indigent
person or not since the date of decree appealed from.
The appellate court in its discretion can also direct the
trial court which passed the decree appealed from to
hold an inquiry on such question.
27. Having examined the scheme of Orders 33
and 44 of the Code and the facts of this case, we find
that the case of the appellant (plaintiff) falls in Order
33 Rule 11 read with Order 44 Rule 3(2) of the Code.
28. Though the appellant (plaintiff) was not
allowed by the trial court/High Court in the earlier
round of litigation to institute a suit as an indigent
person under Order 33 Rule 1 of the Code, yet in our
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considered opinion, he was entitled to file an
application/appeal under Order 44 Rule 1 of the Code
and seek permission from the appellate court to allow
him to file an appeal as an indigent person.
29. In our view, the dismissal of application
made under Order 33 Rule 1 of the Code by the trial
court in the earlier round of litigation is not a bar
against the plaintiff to file an application/appeal under
Order 44 Rule 1 of the Code before the appellate
court. The grant and rejection of such prayer by the
trial court is confined only up to the disposal of the
suit. This is clear from the reading of Rules 3(1) and
3(2) of Order 44, which contemplate holding of an
inquiry again into the question at the appellate stage
as to whether the applicant is an indigent person or
not since the date from the decree appealed from.
30. Once the plaintiff files an appeal under
Order 44 of the Code, his case is governed by the
provisions of Order 44. The applicant to whom the
permission was granted or declined by the trial court is
entitled to apply before the appellate court to allow him
to continue with the status or grant the status so as to
enable him to prosecute the appeal as an indigent
person.
31. This is subject to the applicant filing an
affidavit as required under Order 44 Rule 3(1) where
the status is granted to him by the trial court. If the
averments in his affidavit are controverted by the
State, an inquiry into the status of the applicant as to
whether he is an indigent person since the date of
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decree appealed from is mandatory at the appellate
stage as contemplated under Order 44 Rule 3(1).
32. So far as Clause (2) of Order 44 Rule 3 of
the Code is concerned, it deals with the cases where
the applicant was declined the status of an indigent
person by the trial court in the suit. In such case, the
applicant is entitled to say that he is or has become an
indigent person since the date of decree appealed
from and, therefore, entitled to prosecute the appeal
as an indigent person. In such case also, an inquiry is
required to be held to decide his status.”
VII. Safeguards Against Abuse: Order XXXIII, Rule 5 CPC:
23. While Order XXXIII facilitates access to justice for indigent
persons, it simultaneously incorporates safeguards to prevent misuse of this
concession. Order XXXIII, Rule 5 CPC serves as a gatekeeping provision,
specifying the circumstances under which an application for permission to
sue as an indigent person must be rejected.
(A) Legislative Framework of Rule 5:
24. Order XXXIII, Rule 5 mandates rejection of an application in the
following cases:
(a) The application is not framed or presented in accordance with
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Rules 2 and 3.
(b) The applicant is not an indigent person.
(c) The applicant has, within the two months preceding the
application, disposed of any property fraudulently or to qualify for
indigent status; however, if the property disposed of is insufficient to
pay the court fee, the Court may, for reasons to be recorded, permit
the applicant to sue as an indigent person.
(d) The allegations do not disclose a cause of action.
(e) The applicant has entered into any agreement regarding the
subject-matter of the suit under which another person acquires an
interest.
(f) The allegations show that the suit would be barred under any law
in force.
(g) Any other person has entered into an agreement with the
applicant to finance the litigation.
The mandatory language of Rule 5 “The Court shall reject an application…”
indicates that if any of these conditions are satisfied, rejection is required.
Nevertheless, the scope and applicability of each ground remain subject to
careful judicial interpretation.
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25. Rule 5 serves a dual function, it filters out applications that are
improperly framed, filed by non-indigent persons, tainted by fraud or
champerty, disclose no cause of action, or are barred by law, while
simultaneously protecting court resources.
26. The careful and principled application of Order XXXIII, Rule 5 is
therefore essential to uphold both the spirit and efficacy of the legal aid
mechanism embedded within the Code of Civil Procedure.
VIII. Finality of the Officer’s Report and Court’s Supervisory Role
in Appeals by Indigent Persons:
27. While the report of the court officer or master regarding
pauperism is final on questions of fact, the court retains the authority to
examine legal objections. The provision, inserted by the 1976 Amendment,
ensures that appeals by indigent persons are not unduly delayed, allowing
reliance on affidavits and officers’ reports, but preserving the court’s
supervisory jurisdiction on points of law, was clarified in P.V.
Chandrasekharan Vs. Thirumalai Chit Funds6, as follows:
“5….. It is also contended by the learned
counsel for the respondents, Mr. B.T. Seshadri, that
6 AIR 1989 Mad 30
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the report of the Master is final and it has to be
accepted. In support of his argument, he cited the
decision in Ambalavanan v. Bank of Madurai Ltd.,
wherein it was held that from the statutory procedure
prescribed for the institution and admission of the
appeals in forma pauperis, under O. 44, R. 2, read
with 6.33, C.P.C., when once an enquiry into the
pauperism was directed to be done by the lower
Court, the report is final as it is the result of delegation
of authority. In view of the ratio laid down in the said
decision, the report submitted by the Master in this
case is final. It is to be noted that even though on
the question of fact, it is final, yet, on the question
of law, this Court can consider the objections
raised by the appellants-petitioners herein with
regard to the pauperism.”
28. Orders XXXIII and XLIV of the Code of Civil Procedure embody
the principle that financial incapacity must not bar access to justice. The
scheme provides a structured mechanism for enabling indigent persons to
sue and appeal without immediate payment of court fees, while
simultaneously incorporating safeguards through inquiries, affidavits, and
judicial scrutiny to prevent abuse.
29. From the above provision, it is clear that any person filing an
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application seeking permission to sue as an indigent person must adduce in
proof of his indigency. The opposite party is entitled to disprove the claim of
the petitioner or approach the Court with unclean hands. Thus, Order XXXIII
Rule 6 provides an opportunity for both the parties in the suit to establish
and rebut their respective cases. Under these circumstances, the Court
dealing with the petition has to find out whether prima facie case has been
made out for conducting an inquiry under Order XXXIII or Order XLIV of
Code of Civil Procedure. Only if a prima facie case regarding indigency is
established by the petitioner, then alone an inquiry is to be conducted, but
not otherwise. Based on the documents available, if the Court by itself is
able to form an opinion that the petitioner seeking permission to sue as a
indigent person has not established the prima facie case, then such
petitions are liable to be rejected by the Court, and no further inquiry needs
to be undertaken. The said position has been amply made clear under
Order XXXIII Rule 5 of the Code of Civil Procedure.
30. The next question arises as to whether a certificate obtained by
the revenue authorities of the Government department would be sufficient to
grant permission to sue as an indigent person. In this context, Order XLIV
Rule 3(2) indicates that the Appellate Court by itself decide the indigency of
a person or appoint an officer of that Court to conduct an inquiry, which is to
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be read in continuation of Order XXXIII of the Code of Civil Procedure.
Therefore, mere production of a certificate from the revenue authorities of
the Government department may be considered as a document for the
purpose of considering the case of the indigent person. But it need not be
accepted as a conclusive proof to declare a person as indigent. Therefore,
any such certificate obtained from an authority of the Government
department may be relied on for the purpose of establishing the indigent
circumstances, but such a certificate cannot be a conclusive proof for
arriving a decision that the person is indigent. To conclude the issue, the
Court has to conduct an independent inquiry by itself or by appointing an
officer of that Court. The Court or the officer of that Court appointed has to
conduct an inquiry by following the established procedures and form an
opinion for the purpose of declaring the person as indigent. On receipt of
report, the Court independently takes a decision both on facts and law.
IX. Conclusion:
31. In the present case, the respondents relied on the bank
statement produced by the petitioner. It is the statement issued by the Bank
of Baroda, Virugambakkam, Tamil Nadu. The account stands in the name of
the petitioner. The statements of accounts from 03.01.2024 till 26.01.2025
have been produced before this Court. Perusal of the statement would show
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that the petitioner has deposited a sum of Rs.58,06,479.20/-. That apart, the
petitioner himself admitted that he has two properties in his name and he
has made no attempt to alienate the said properties.
32. Therefore, the petitioner herein has not established that he has
no “sufficient means” to raise funds to pay the Court fee. Thus, the present
petition fails and consequently, stands dismissed. However, the petitioner is
at liberty to pay the Court fee within a period of two weeks from the date of
receipt of a copy of this order and represent the appeal before the Registry.
Consequently, the Original Side Appeal is rejected at the SR stage itself. No
costs.
(S.M.SUBRAMANIAM J.)(MOHAMMED SHAFFIQ J.)
25.09.2025
gd
Index:Yes/No
Speaking/Non-speaking order
Internet:Yes
Neutral Citation:Yes/No
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S.M.SUBRAMANIAM, J.
and
MOHAMMED SHAFFIQ J.
gd
Pre-Delivery Order in
in
25.09.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/09/2025 01:33:51 pm )
