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SUPREME COURT OF INDIA
M.R. SHAH, M.M. SUNDRESH, JJ.
Solomon Selvaraj & Ors. - Appellants
Versus
Indirani Bhagawan Singh & Ors. - Respondents
Civil Appeal No.8885 of 2022
Decided on : 02-12-2022
Civil Procedure Code, 1908 – Order 33 Rules 1, 5, 15 and 15A – Suit by indigent person – Application under Order 33 Rule 1 CPC seeking permission to sue as indigent person can be rejected on grounds mentioned in Order 33 Rule 5 CPC – It includes that allegations in application would not show cause of action or that allegations made by applicant in applications show that suit would be barred by law for time being in force (Order 33 Rule 5(d) & (f) CPC) – Application for permission to sue as an indigent person has to be rejected and could not be allowed if allegations in plaint could not show any cause of action – When having prima facie found that plaint does not disclose any cause of action and suit is barred by res judicata it cannot be said that Trial Court committed any error in rejecting application to sue as indigent persons – Court may, while rejecting application under Order 33 Rule 15A CPC grant time to applicant to pay requisite Court fee within such time as may be fixed by Court or extended by it from time to time and upon such payment and on payment of cost referred to in Rule 15 within that time, suit shall be deemed to have been instituted on the date on which application for permission to sue as an indigent person was presented. (Paras 6.4, 6.5 and 6.6)
Facts of the case:
Feeling aggrieved and dissatisfied with the impugned judgment and order dated 28.01.2022 passed by the High Court of Judicature at Madras in CMA No.38 of 2021 by which High Court has dismissed the said Miscellaneous Appeal and has confirmed the order passed by Trial Court rejecting an application filed by the appellants herein seeking leave to file the suit as indigent persons, the original applicants-plaintiffs have preferred the present appeal.
Question which is posed for consideration before this Court is even in a case where application to sue as indigent persons is rejected what order can be passed and what will be the remedy available to plaintiff/(s)?
Findings of Court:
Any observations made by Trial Court and the High Court that suit is barred by res judicata and/or on no cause of action shall be treated confine to deciding application to sue as indigent person only.
Result : Appeal disposed of.
JUDGMENT :
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 28.01.2022 passed by the High Court of Judicature at Madras in CMA No.38 of 2021 by which the High Court has dismissed the said Miscellaneous Appeal and has confirmed the order passed by the learned Trial Court rejecting an application filed by the appellants herein seeking leave to file the suit as indigent persons, the original applicants – plaintiffs have preferred the present appeal.
2. That the appellants herein -original plaintiffs instituted the suit before the learned Trial Court for declaration of title and for recovery of possession. In the said suit the plaintiffs filed an application being I.O.P. No.1 of 2015 permitting them to file the suit as indigent persons. The said application was opposed by the defendants on the grounds inter alia that the suit is barred by res judicata; there is no cause of action for filing the suit. The claim of the plaintiffs that they are indigent persons was also contested. The learned Trial Court rejected the said application filed by the appellants seeking leave to file the suit as indigent persons. The order passed by the learned Trial Court rejecting the application to sue as indigent persons was the subject matter of miscellaneous appeal before the High Court.
2.1 By the impugned judgment and order the High Court has dismissed the said appeal by observing that the suit is barred by res judicata and that if the subsequent suit, if allowed would amount to an abuse of process of court. The impugned judgment and order passed by the High Court dismissing the appeal is the subject matter of present appeal.
3. Ms. V. Mohana, learned Senior Counsel appearing on behalf of the appellants has vehemently submitted that in an application permitting the plaintiffs to sue as indigent persons, it is not open for the learned Trial Court and/or the High Court to opine on merits of the suit and whether the plaintiff is likely to succeed and/or whether the suit is barred by res judicata or not. It is submitted that at the most the Court may dismiss the application permitting to sue as indigent persons and in that case the plaintiffs may pay the requisite court fees and thereafter the suit is to be proceeded further.
3.1 Ms. V. Mohana, learned Senior Counsel appearing on behalf of the appellants has stated at the Bar that the appellants are ready to pay the Court fees treating their application to sue as indigent persons dismissed.
4. Shri V. Parthiban, learned counsel has appeared on behalf of the respondents – original defendants. It is submitted that the present suit is nothing but an abuse of process of court and the court’s process. That the suit is liable to be dismissed on the ground being barred by res judicata.
4.1 It is submitted that at the time of deciding the application to sue as indigent persons it is open for the Court to consider whether the suit is an abuse of process of law and/or Court or not. Reliance is placed in the case of Kamu Alias Kamala Ammal vs. M. Manikandan and Anr., (1998) 8 SCC 522.
5. Heard learned counsel appearing for the respective parties at length.
6. At the outset, it is required to be noted that in the present case the appellants herein – the original plaintiffs while instituting the suit submitted an application to permit them to sue as indigent persons under Order 33 rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’). The said application came to be dismissed by the learned Trial Court, confirmed by the High Court on the ground that the suit is vexatious, an abuse of process of law and the court and the suit is barred by res judicata. Therefore, the short question which is posed for consideration before this Court is whether on the aforesaid ground the application under Order 33 Rule 1 CPC namely to sue as indigent persons could have been rejected by the learned Trial Court? The question which is posed for consideration before this C
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