IMPORTANT POINT
After posting of indigent application for enquiry, only order which court can pass is order of refusal.

K. Abraham Mathew, J.—Rejection of an indigent application in a suit is no bar to file a subsequent application in respect of the same right to sue while refusal to allow the application is a bar to a second application. These different legal consequences that flow from the rejection of and the refusal to allow an indigent application make it necessary in this proceedings to dissect and examine the relevant provisions in Order 33 of the Code of Civil Procedure.

2. The petitioner is an engineer by profession. To recover Rs.74,66,107 from the respondents he filed a suit in the form of an indigent application in the court of the II Additional Sub-Judge, Thiruvananthapuram, which was taken on its file as O.P (Ind) 38 of 1996. Notice was issued to the respondents, who entered appearance and objected to the prayer. In the enquiry the learned Sub Judge held that since the petitioner did not disclose all his assets, he could not be allowed to sue as an indigent. The court ‘disallowed’ the prayer and directed him to pay the court fees. In CMA 248 of 1998 filed by the petitioner this court confirmed the order of the lower court. Subsequently the petitioner paid the required court fees. After trial the lower court dismissed the suit. Now the plaintiff wants to prefer an appeal against the decree as an indigent person. A preliminary objection has been raised by the respondents. The objection is that the application for leave to file the appeal as an indigent person is barred under Order 33 Rule 15 of the Code of Civil Procedure.

3. Heard Sri.Saji Issac and Sri.Vinod Bhat learned counsel appearing for the petitioner and the respondents respectively. We have also heard the learned government pleader.

4. The argument of Sri.Saji Issac is two fold: (1) Refusal to allow an indigent application in a suit is not a bar to entertain an application for the same purpose in the appeal from that suit, and (2) the order passed by the lower court is an order of rejection and not of refusal, and the bar under Order 33 Rule 15 of the Code of Civil Procedure, which applies only to an order of refusal, is inapplicable in this case.

5. The relevant portion in Order 33 Rule 15 of the Code of Civil Procedure may be extracted:

“An order refusing to allow the applicant to sue as an indigent person shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue...”

To attract the Rule two conditions are necessary: First, the earlier order was an order of refusal and not of rejection; and the second, the subsequent application is in respect of the same right to sue.

6. The first limb of the argument of the learned counsel for the petitioner is that Rule 15 only prohibits filing of a second application in the very same suit and not in an appeal from the decree passed in it. Sri.Vinod Bhat learned counsel for the respondent, on the other hand, relies on Order 44 Rule 1 which provides that all the provisions in Order 33 are applicable in an appeal.

7. Rule 15 disentitles a party from filing a subsequent application in respect of the same right to sue. The nature of the proceedings in which the second application is filed is irrelevant. What is only necessary is that the proceedings should be in respect of the same right to sue. If the right to sue is identical in both proceedings, Rule 15 is attracted.

8. What does right to sue mean? “The words ‘right to sue’ ordinarily mean the right to seek relief by means of legal proceedings. Generally, the right to sue accrues only when the cause of action arises, that is, the right to prosecute to obtain relief by legal means”.State of Punjab and others v. Gurdev Singh, AIR 1991 SC 2219.

9. In respect of the same right to sue there can be various proceedings. It may be the very same suit in which the earlier application was filed, or another suit already instituted, or a fresh suit. It may be an appeal from the decree in which the earlier application was filed. One cannot say that an app