Code of Civil Procedure, 1908: Or.33 – Suits for declaration of title and recovery of possession – Application u/Or.33 r.1 to sue as an indigent person – Trial court and High Court rejected the application on the ground that the suit is abuse of process of law and the court is barred by res judicata – On appeal, held: Application seeking permission to sue as an indigent person can be rejected on the grounds mentioned in Or.33 r.5 which includes the grounds where the allegations in the application do not show a cause of action and where the suit is barred by law (Or.33 rr.5(d) and (f) CPC) – However, the court may, while rejecting an application, u/Or.33 r.15A grant time to the applicant to pay the requisite court fee and then 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 – In the instant case, prima facie the suit was barred by res judicata and the plaint did not disclose any cause of action – Therefore, it cannot be said that the trial court committed any error in rejecting the application to sue as indigent person – Appellant agreed to pay the requisite court fees, four weeks’ time period is granted as envisaged in Or.33 r.15A – However, the observations made by courts below while rejecting the said application that the suit is barred by res judicata and no cause of action, shall be treated confine to deciding the application to sue as an indigent person only – It will be open to defendants to file an application to reject the plaint u/Or.7 r.11 or any other application and the same be considered in accordance with law without getting influenced by the observations.
Disposing of the appeal, the Court
HELD: 1.1The 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). Identical question was considered by this Court in the case of Kamu Alias Kamala Ammal v. M. Manikandan and Anr. While considering Order 33 Rule 5, CPC, it was observed 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. Applying the law laid down by this Court in the said 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 Trial Court committed any error in rejecting the application to sue as indigent persons. [Paras 6.4, 6.5][648-E-H]
Kamu Alias Kamala Ammal v. M. Manikandan and Anr. (1998) 8 SCC 522 – relied on.
1.2 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, 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 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 then 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. [Para 6.6][649-A-F]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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