Court Cannot Direct Indigent Plaintiff to Pay Court Fee Without First Withdrawing Pauper Status Under Order XXXIII Rule 9: Uttarakhand HC

The Uttarakhand High Court dismissed a civil revision filed by defendants who sought a mid-trial direction compelling an indigent plaintiff to deposit court fee, holding that such a direction is legally untenable unless pauper status is first withdrawn under Order XXXIII Rule 9 of the Code of Civil Procedure, 1908.

The High Court of Uttarakhand at Nainital, in Civil Revision No. 50 of 2026, has dismissed a challenge to a trial court order that refused to compel a plaintiff—previously declared an indigent person—to deposit court fee during the evidence stage of a civil suit. Justice Siddhartha Sah, sitting singly, upheld the trial court's rejection of the defendants' application, though on reasoning different from that of the court below. The judgment clarifies that a court cannot issue a standalone direction to pay court fee while a pauper order remains in force; the defendants must first obtain withdrawal of that permission under Order XXXIII Rule 9 CPC before any court fee obligation can be imposed.

The Suit and the Indigency Order

The underlying civil suit was filed in 2021 by Saroj Bala Gaur against the legal heirs of the late Sanjay Negi before the Civil Judge (Senior Division), Kotdwar, District Pauri Garhwal. The plaintiff sought recovery of Rs. 32,69,700/- and a declaration that a sale deed dated 21 May 2015, executed between her and the defendants, was null and void.

At the time of filing, the plaintiff also moved an application under Order XXXIII read with Section 151 of the Code of Civil Procedure, 1908, seeking exemption from court fee on the ground that she was an indigent person. The trial court ordered an inquiry into her financial status on 2 December 2021. The Assistant District Government Counsel (Civil), Kotdwar, directed the Tehsildar, Kotdwar to submit a report on any property registered in the plaintiff's name within the jurisdiction.

The plaintiff also filed an affidavit stating she had no assets anywhere in India, either in her own name or in her husband's name. The revenue authorities of Tehsil Kotdwar submitted an inquiry report confirming that the plaintiff held no immovable property other than the property in dispute. On the basis of that report, the Civil Judge passed an order dated 30 May 2022 declaring the plaintiff an indigent person and permitting her to institute the suit without paying the applicable court fee. The matter was then registered as Civil Suit No. 44 of 2022.

The Disclosure During Cross-Examination

The defendants filed their written statement and contested the suit. During trial, on 19 February 2026, PW-1—the plaintiff's daughter, who was also her power of attorney holder—was cross-examined. She stated that her father had served as a constable in the Police Department and that after his death, the plaintiff was receiving his pension. She also stated that her parents had previously resided in a house at Dehradun before shifting to the suit property at Kotdwar.

On the strength of these disclosures, the defendants filed Application No. 60-Ga dated 17 March 2026, praying that the plaintiff be directed to deposit the applicable court fee before leading the remaining plaintiff's evidence. The defendants alleged that the plaintiff had obtained the court fee waiver by suppressing material facts—specifically, that she was receiving a pension.

The trial court heard the application and, by order dated 18 March 2026, rejected it with costs of Rs. 500/-. The trial court's reasoning was that since permission to sue as an indigent person had already been granted, the issue could not be reopened at that stage. The trial court also observed that the defendants appeared to be filing such applications only to delay disposal of the suit.

The Revision Before the High Court

The defendants challenged the order dated 18 March 2026 in Civil Revision No. 50 of 2026 before the High Court. Their counsel, Mr. Tejas Agarrwal, argued that the trial court had rejected the application on the incorrect assumption that the matter had been conclusively adjudicated at the preliminary stage. Counsel drew the Court's attention to Order XXXIII Rule 9 CPC, which provides for withdrawal of permission to sue as an indigent person in appropriate circumstances.

However, when the High Court examined Application No. 60-Ga itself, counsel for the defendants fairly conceded that the application contained no prayer seeking withdrawal of the permission granted under the order dated 30 May 2022. The only relief sought was a direction to the plaintiff to deposit court fee before recording the remaining evidence.

The State's counsel, Mr. M.S. Bisht, appearing as Brief Holder, submitted that the plaintiff had neither sought recall of the order dated 30 May 2022 nor challenged it before any higher forum. He argued that since the indigency order had been passed only after a proper inquiry through revenue authorities, and since no recall or challenge had been filed, Application No. 60-Ga was not maintainable at this belated stage.

The High Court's Reasoning on Order XXXIII Rule 9 CPC

Justice Siddhartha Sah reproduced the text of Order XXXIII Rule 9 CPC in the judgment. The provision allows a court, on an application by the defendant or the Government Pleader (with seven days' clear written notice to the plaintiff), to withdraw permission to sue as an indigent person in three situations: if the plaintiff is guilty of vexatious or improper conduct in the course of the suit; if it appears that the plaintiff's means are such that he or she ought not to continue to sue as an indigent person; or if the plaintiff has entered into any agreement under which another person has obtained an interest in the subject-matter.

The Court held that Application No. 60-Ga was, in substance, a consequential application. It did not seek withdrawal of the pauper permission; it sought only a direction to deposit court fee. The Court reasoned that the scheme of Order XXXIII Rule 9 makes the sequence clear: unless the permission to sue as an indigent person is first withdrawn by the court in accordance with law, no direction can be issued requiring the plaintiff to deposit court fee merely on the basis of such an application.

Since the defendants had not sought withdrawal of the earlier permission and had instead filed an application only for directing the plaintiff to tender court fee, the application was held to be not legally tenable. The Court concluded that Application No. 60-Ga could have been maintainable only after an appropriate application under Order XXXIII Rule 9 CPC seeking withdrawal of permission had first been allowed.

The High Court upheld the trial court's rejection of the application, though for reasons different from those assigned in the impugned order. The Court found no illegality, perversity, or jurisdictional error in the trial court's order dated 18 March 2026 that would warrant interference in revision.

Liberty to File a Fresh Application and the Time-Bound Direction

At the hearing, counsel for the defendants fairly submitted that the defendants may be granted liberty to file a fresh application under Order XXXIII Rule 9 CPC seeking withdrawal of the permission granted to the plaintiff to sue as an indigent person.

The State's counsel did not oppose this in principle but pointed to the peculiar facts of the case—in particular, that the plaintiff is an elderly lady aged about 83 years—and submitted that any such application, if filed, ought to be decided within a time-bound period.

The High Court accepted this position. It observed that in the event an application under Order XXXIII Rule 9 CPC is filed by the defendants before the trial court, the same shall be considered and decided expeditiously, preferably within two months from the date of its filing.

Order

Civil Revision No. 50 of 2026 was dismissed. The order dated 18 March 2026 passed by the Civil Judge (Senior Division), Kotdwar, rejecting Application No. 60-Ga with costs of Rs. 500/-, was upheld. The High Court granted liberty to the defendants to file a fresh application under Order XXXIII Rule 9 CPC before the trial court, subject to the direction that any such application shall be decided preferably within two months of filing. The judgment was delivered on 2 May 2026.