SOLOMON SELVARAJ & ORS. versus INDIRANI BHAGAWAN SINGH & ORS. on 2 December 2022

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 28.01.2022 passed by the High Court of Judicature atGMadras in CMA No.38 of 2021 by which the High Court has dismissedthe said Miscellaneous Appeal and has confirmed the order passed bythe learned Trial Court rejecting an application filed by the appellantsherein seeking leave to file the suit as indigent persons, the originalapplicants – plaintiffs have preferred the present appeal.H

2. That the appellants herein - original plaintiffs instituted the suitbefore the learned Trial Court for declaration of title and for recovery ofpossession. 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. Thesaid application was opposed by the defendants on the grounds interalia that the suit is barred by res judicata; there is no cause of action forfiling the suit. The claim of the plaintiffs that they are indigent personswas also contested. The learned Trial Court rejected the said applicationfiled by the appellants seeking leave to file the suit as indigent persons.The order passed by the learned Trial Court rejecting the application tosue as indigent persons was the subject matter of miscellaneous appealbefore the High Court.

2.1 By the impugned judgment and order the High Court hasdismissed the said appeal by observing that the suit is barred by resjudicata and that if the subsequent suit, if allowed would amount to anabuse of process of court. The impugned judgment and order passed bythe High Court dismissing the appeal is the subject matter of presentappeal.

3. Ms. V. Mohana, learned Senior Counsel appearing on behalf ofthe appellants has vehemently submitted that in an application permittingthe plaintiffs to sue as indigent persons, it is not open for the learnedTrial Court and/or the High Court to opine on merits of the suit andwhether the plaintiff is likely to succeed and/or whether the suit is barredby res judicata or not. It is submitted that at the most the Court maydismiss the application permitting to sue as indigent persons and in thatcase the plaintiffs may pay the requisite court fees and thereafter thesuit is to be proceeded further.

3.1 Ms. V. Mohana, learned Senior Counsel appearing on behalfof the appellants has stated at the Bar that the appellants are ready topay the Court fees treating their application to sue as indigent personsdismissed.

4. Shri V. Parthiban, learned counsel has appeared on behalf ofthe respondents – original defendants. It is submitted that the presentsuit 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 resjudicata.

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A4.1 It is submitted that at the time of deciding the application tosue as indigent persons it is open for the Court to consider whether thesuit is an abuse of process of law and/or Court or not. Reliance is placedin the case of Kamu Alias Kamala Ammal vs. M. Manikandan andAnr., (1998) 8 SCC 522.

5. Heard learned counsel appearing for the respective parties atlength.

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6. At the outset, it is required to be noted that in the present casethe appellants herein – the original plaintiffs while instituting the suitsubmitted an application to permit them to sue as indigent persons underCOrder 33 rule 1 of the Code of Civil Procedure, 1908 (hereinafter referredto as the ‘CPC’). The said application came to be dismissed by thelearned Trial Court, confirmed by the High Court on the ground that thesuit is vexatious, an abuse of process of law and the court and the suit isbarred by res judicata. Therefore, the short question which is posed forconsideration before this Court is whether on the aforesaid ground theDapplication under Order 33 Rule 1 CPC namely to sue as indigent personscould have been rejected by the learned Trial Court? The question whichis posed for consideration before this Court is even in a case where theapplication to sue as indigent persons is rejected what order can bepassed and what will be the remedy available to the plaintiff/(s)?

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6.1While considering the aforesaid questions/issues relevantprovisions of Order 33 CPC are required to be referred to:

An application to sue as indigent persons would be under Order33 Rule 1 CPC. Order 33 Rule 1A CPC provides for inquiry into themeans of an indigent person. Order 33 Rule 2 CPC provides contents ofFapplication. Order 33 Rule 4 CPC provides for examination of theapplicant in case the application is in proper form and duly presented.Order 33 Rule 5 CPC provides the circumstances under which theapplication for permission to sue as an indigent person can be rejected.Order 33 Rule 5 CPC reads as under:

G“5. Rejection of application - The Court shall reject anapplication for permission to sue as an indigent person- (a) where it is not framed and presented in the manner prescribedby rule 2 and 3, or (b) where the applicant is not an indigent persons, or H

(c) where he has, within two months next before thepresentation of the application disposed of any propertyfraudulently or in order to be able to apply for permission to sueas an indigent person:

Provided that no application shall be rejected if, even after thevalue of the property disposed of by the applicant is taken intoaccount, the applicant would be entitled to sue as an indigent person,or (d) where his allegations do not show a cause of action, or (e) where he has entered into any agreement with reference tothe subject-matter of the proposed suit under which any otherperson has obtained an interest in such subject-matter, or (f) where the allegations made by the applicant in the applicationshow that the suit would be barred by any law for the time beingin force, or (g) where any other person has entered into an agreement withhim to finance the litigation.”

6.2 Order 33 Rule 7 CPC provides for procedure at hearing.Order 33 Rule 8 CPC provides for procedure if application is allowed.It appears that if the application is granted, it shall be numbered andregistered, and it shall be deemed the plaint in the suit, and the suitshall proceed in all other respects as the suit instituted in the ordinarymanner, except that the plaintiff shall not be liable to pay any court feeor fees payable for service of process in respect of any petition,appointment of a pleader or other proceeding connected with the suit.Meaning thereby if the application is granted thereafter the suit shallbe numbered and registered. Till then the plaint/suit shall be at pre-numbered and pre-registered stage.

6.3 Order 33 Rule 9 CPC provides for withdrawal of permissionto sue as an indigent person on the application of the defendant, or of theGovernment pleader on the grounds stated in Order 33 Rule 9 CPC.When such an application is preferred under Order 33 Rule 9A CPC, itis the duty cast upon the Court to assign a pleader to a person who ispermitted to sue as an indigent person, if not ready by a pleader. Thatthereafter most relevant provision is Order 33 Rule 15 and Order 33Rule 15A CPC which read as under:

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A“15. REFUSAL TO ALLOW APPLICANT TO SUE AS ANINDIGENT PERSON TO BAR SUBSEQUENTAPPLICATION OF LIKE NATURE.

An order refusing to allow the applicant to sue as an indigentperson shall be a bar to any subsequent application of the likeBnature by him in respect of the same right to sue; but the applicantshall be at liberty to institute a suit in the ordinary manner in respectof such right; Provided that the plaint shall be rejected if he does not pay, eitherat the time of the institution of the suit or within such time thereafteras the Court may allow, the costs (if any) incurred by the StateCGovernment and by the opposite party in opposing his applicationfor leave to sue as an indigent person.”

“15A. GRANT OF TIME FOR PAYMENT OF COURT-FEE.

Nothing contained in rule 5, rule 7 or rule 15 shall prevent a Court,while rejecting an application under rule 5 or refusing an applicationDunder rule 7, from granting time to the applicant to pay the requisitecourt-fee within such time as may be fixed by the Court or extendedby it from time to time; and upon such payment and on paymentof the costs referred to in rule 15 within that time, the suit shall bedeemed to have been instituted on the date on which the applicationfor permission to sue as an indigent person was presented.”E

6.4 Thus, from the scheme of Order 33 CPC, it emerges that theapplication under Order 33 Rule 1 CPC seeking permission to sue asindigent person can be rejected on the grounds mentioned in Order 33Rule 5 CPC. It includes that the allegations in the application would notshow cause of action …… or that the allegations made by the applicantFin the applications show that the suit would be barred by law for the timebeing in force (Order 33 Rule 5(d) & (f) CPC). Identical question cameto be considered by this Court in the case of Kamu Alias KamalaAmmal (supra). While considering Order 33 Rule 5, CPC, it is observedand held that the application for permission to sue as an indigent personhas to be rejected and could not be allowed if the allegations in the plaintGcould not show any cause of action.

6.5 Applying the law laid down by this Court in the aforesaiddecision and when having prima facie found that the plaint does notdisclose any cause of action and the suit is barred by res judicata itcannot be said that the learned Trial Court committed any error in rejectingHthe application to sue as indigent persons.

6.6 However, at the same time taking into consideration Order 33Rule 15 and 15A CPC and when the application to sue as indigent personis rejected and/or refused, the Court may, while rejecting an application,under Order 33 Rule 15A CPC grant time to the applicant to pay therequisite Court fee within such time as may be fixed by the Court orextended by it from time to time and upon such payment and on paymentof cost referred to in Rule 15 within that time, the suit shall be deemed tohave been instituted on the date on which the application for permissionto sue as an indigent person was presented, even considering Order 33Rule 15 CPC on refusing to allow to sue as an indigent person whichmay be a barto any subsequent application of the like nature in respectof the same right to sue, the applicant shall be at liberty to institute a suitin the ordinary manner in respect of such right, therefore, taking intoconsideration Order 33 Rule 15A and Order 33 Rule 5 CPC, instead ofremanding matter to the learned Trial Court to pass an appropriate ordergranting the appellants – original applicants time to pay the requisitecourt fee and now when the appellants have agreed to pay the requisitecourt fees, we grant further four weeks’ time to the appellants – originalapplicants to pay the requisite court fees and on payment of such courtfees the suit shall be deemed to have been instituted on the date onwhich the application for permission to sue as an indigent person waspresented. However, it is observed that any observations made by thelearned Trial Court and the High Court that the suit is barred by resjudicata and/or on no cause of action shall be treated confine to deciding the application to sue as indigent person only. However, at the sametime it will be open for the defendants to file an appropriate applicationto reject the plaint under Order 7 Rule 11 CPC and/or any other applicationto reject the plaint and as and when such application is/are filed, thesame be considered in accordance with law and on its own merits withoutin any way being influenced by any of the observations made by theHigh Court while rejecting the application to sue as indigent persons.

Present appeal stands disposed of in terms of the above. However,in the facts and circumstances of the case there shall be no order as tocosts.

Devika Gujral

Appeal disposed of.

(Assisted by : Shevali Monga, LCRA)

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