Full Judgment Text
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.8885 OF 2022
SOLOMON SELVARAJ & ORS. …Appellants
Versus
INDIRANI BHAGAWAN SINGH & ORS. …Respondents
J U D G M E N T
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
Signature Not Verified
Digitally signed by
Neetu Sachdeva
Date: 2022.12.02
16:23:01 IST
Reason:
the High Court has dismissed the said Miscellaneous Appeal
and has confirmed the order passed by the learned Trial Court
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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.
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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.
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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.
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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 Court is even in a case where the
application to sue as indigent persons is rejected what order
can be passed and what will be the remedy available to the
plaintiff/(s)?
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6.1 While considering the aforesaid questions/issues relevant
provisions of Order 33 CPC are required to be referred to:
An application to sue as indigent persons would be under
Order 33 Rule 1 CPC. Order 33 Rule 1A CPC provides for
inquiry into the means of an indigent person. Order 33 Rule 2
CPC provides contents of application. Order 33 Rule 4 CPC
provides for examination of the applicant in case the
application is in proper form and duly presented. Order 33
Rule 5 CPC provides the circumstances under which the
application for permission to sue as an indigent person can be
rejected. Order 33 Rule 5 CPC reads as under:
“ - The Court shall
5. Rejection of application
reject an application for permission to sue as an
indigent person-
(a) where it is not framed and presented in the
manner prescribed by rule 2 and 3, or
(b) where the applicant is not an indigent
persons, or
(c) where he has, within two months next before
the presentation of the application disposed of
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any property fraudulently or in order to be able
to apply for permission to sue as an indigent
person:
Provided that no application shall be rejected if,
even after the value of the property disposed of
by the applicant is taken into account, 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 to the subject-matter of the
proposed suit under which any other person has
obtained an interest in such subject-matter, or
(f) where the allegations made by the applicant
in the application show that the suit would be
barred by any law for the time being in force, or
(g) where any other person has entered into an
agreement with him 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 and registered, and it shall be deemed the plaint in
the suit, and the suit shall proceed in all other respects as the
suit instituted in the ordinary manner, except that the plaintiff
shall not be liable to pay any court fee or fees payable for
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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 shall be
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
permission to sue as an indigent person on the application of
the defendant, or of the Government pleader on the grounds
stated in Order 33 Rule 9 CPC. When such an application is
preferred under Order 33 Rule 9A CPC, it is the duty cast upon
the Court to assign a pleader to a person who is permitted to
sue as an indigent person, if not ready by a pleader. That
thereafter most relevant provision is Order 33 Rule 15 and
Order 33 Rule 15A CPC which read as under:
“15. REFUSAL TO ALLOW APPLICANT TO SUE
AS AN INDIGENT PERSON TO BAR
SUBSEQUENT APPLICATION OF LIKE NATURE.
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; but the
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applicant shall be at liberty to institute a suit in
the ordinary manner in respect of such right;
Provided that the plaint shall be rejected if he
does not pay, either at the time of the institution
of the suit or within such time thereafter as the
Court may allow, the costs (if any) incurred by the
State Government and by the opposite party in
opposing his application for 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 application under rule
7, from granting 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
the costs 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.”
6.4 Thus, from 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
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…… 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). Identical
question came to be considered by this Court in the case of
Kamu Alias Kamala Ammal (supra). While considering Order
33 Rule 5, CPC, it is observed and held that 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.
6.5 Applying the law laid down by this Court in the aforesaid
decision and when 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.
6.6 However, at the same time taking into consideration Order
33 Rule 15 and 15A CPC and when the application to sue as
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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, even
considering Order 33 Rule 15 CPC on refusing to allow to sue
as an indigent person which may be a bar to any subsequent
application of the like nature in respect of the same right to
sue, the applicant shall be at liberty to institute a suit in the
ordinary manner in respect of such right, therefore, taking into
consideration Order 33 Rule 15A and Order 33 Rule 5 CPC,
instead of remanding matter to the learned Trial Court to pass
an appropriate order granting the appellants – original
applicants time to pay the requisite court fee and now when the
appellants have agreed to pay the requisite court fees, we grant
further four weeks’ time to the appellants – original applicants
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to pay the requisite court fees and on payment of such court
fees 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. However, it is observed that 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. However, at the
same time it will be 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, the same be considered
in accordance with law and on its own merits without in any
way being influenced by any of the observations made by the
High Court while rejecting the application to sue as indigent
persons.
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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 to costs.
…………………………..J.
(M. R. SHAH)
..………………………...J.
(M.M. SUNDRESH)
New Delhi;
December 2, 2022.
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