### Legal Representatives Must Independently Establish Indigency to Prosecute Suits Without Payment of Court Fees

One Smt. Padmavatamma filed Misc. No. 39/2011 under Order XXXIII Rule 1 of the CPC seeking leave to sue as an indigent person

During the pendency of the application, the applicant died, and her legal representatives (LRs), the respondents herein, were brought on record to continue the proceedings

The petitioner opposed this, arguing that the LRs must independently prove their own indigency

Despite evidence suggesting the LRs had independent income, the Trial Court allowed the miscellaneous petition and granted them indigent status without a detailed inquiry into their financial capacity

The petitioner challenged this order via a writ petition.

1. Whether the right to prosecute a suit as an indigent person automatically devolves upon the legal representatives on the death of the original applicant

2. Whether the Trial Court is mandated to conduct an independent inquiry into the financial capacity of the legal representatives under Explanation III to Order XXXIII Rule 1 of the CPC

Order XXXIII Rule 1 of the CPC, specifically Explanation III (inserted by the 1976 Amendment), which mandates that upon the death of an applicant, the inquiry must shift to the financial capacity of the legal representatives in their representative capacity

The precedent of Smt. Lakshmi and Others v. Vijaya Bank [AIR 2011 Kar 89], which established that while the substantive right to sue survives, the privilege of suing as an indigent person is a "personal statutory concession" that does not automatically devolve

Procedural requirements under Order XXII and Section 149 of the CPC regarding the substitution of parties and payment of court fees

The High Court observed that the Trial Court committed a jurisdictional error by mechanically extending the deceased applicant's indigent status to her LRs

The court reasoned that under Explanation III of Order XXXIII Rule 1, the relevant test is whether the legal representatives possess sufficient means to pay the court fee, not whether the deceased satisfied the criteria

The analysis emphasizes that because the indigent status is a personal privilege, the LRs must provide specific pleadings and acceptable evidence to establish their own financial status

The court found that the Trial Court failed to advert to material admissions regarding the LRs' independent income and failed to record any finding on their lack of means, rendering the impugned order bereft of judicial application of mind

The Court allowed WP No. 100011/2019, quashed the order dated 07.11.2018, and remitted the matter to the Trial Court for a fresh, detailed inquiry into the financial status of the LRs as per Explanation III to Order XXXIII Rule 1. WP No. 104337/2021 was dismissed as infructuous following the remand of the primary matter