Solomon Selvaraj vs Indirani Bhagawan Singh

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

JUDGMENT

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 28.01.2022 passed by the High

Signature Not Verified Court of Judicature at Madras in CMA No.38 of 2021 by which Digitally signed by Neetu Sachdeva

the High Court has dismissed the said Miscellaneous Appeal Date: 2022.12.02 16:23:01 IST Reason:

and has confirmed the order passed by the learned Trial Court 1 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 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 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)?

5 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:

“5. Rejection of application - The Court shall 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

6 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 7 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

8 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

9 …… 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

10 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

11 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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