On 2nd December 2022, the Supreme Court in a Division Bench comprising of Justice M.R. Shah and Justice M.M. Sundresh observed that while considering Order 33 Rule 5, CPC, the application for permission to sue as an indigent person has to be rejected and could not be allowed if the allegations in the plaint could not show any cause of action. (Solomon Selvaraj & Ors. Vs. Indirani Bhagawan Singh & Ors.)
Facts of the Case:
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. 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.
Contentions of the Appellants:
The counsel for the appellants 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. 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. The appellants are ready to pay the Court fees treating their application to sue as indigent persons dismissed.”
Contentions of the Respondents:
The counsel for the respondents 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. 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 was placed in the case of Kamu Alias Kamala Ammal vs. M. Manikandan and Anr.
Observations and Judgment of the Court:
The hon’ble court observed that “the scheme of Order 33 CPC, it emerges that the application under Order 33 Rule 1 CPC seeking permission to sue as indigent person can be rejected on the grounds mentioned in Order 33 Rule 5 CPC. It includes that the allegations in the application would not show cause of action or that the allegations made by the applicant in the applications show that the suit would be barred by law for the time being in force (Order 33 Rule 5(d) & (f) CPC). Having prima facie found that the plaint does not disclose any cause of action and the suit is barred by res judicata it cannot be said that the learned Trial Court committed any error in rejecting the application to sue as indigent persons. However, at the same time taking into consideration Order 33 Rule 15 and 15A CPC and when the application to sue as indigent person is rejected and/or refused, the Court may, while rejecting an application, under Order 33 Rule 15A CPC grant time to the applicant to pay the requisite Court fee within such time as may be fixed by the 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, the suit shall be deemed to have been instituted on the date on which the application for permission to sue as an indigent person was presented. Any observations made by the learned Trial Court and the High Court that the suit is barred by res judicata and/or on no cause of action shall be treated confine to deciding the application to sue as indigent person only.”
The present appeal was disposed of, a further four weeks’ time was granted to the appellant to pay the requisite court fees. However, it was left open for the defendants to file an appropriate application to reject the plaint under Order 7 Rule 11 CPC and/or any other application to reject the plaint and as and when such application is/are filed.
Case: Solomon Selvaraj & Ors. Vs. Indirani Bhagawan Singh & Ors.
Citation: Civil Appeal No.8885 Of 2022
Bench: Justice M.R. Shah and Justice M.M. Sundresh
Date: December 02, 2022.
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