Application Under Order 33 Rule 1 CPC To Sue As Indigent Can Be Rejected If Barred By Res Judicata: SC

The Supreme Court while dealing with an appeal filed against the judgment and order passed by the Madras High Court by which the order passed by the Trial Court rejecting an application was confirmed held that the application filed under Order 33 Rule 1 of the Civil Procedure Code to sue as an indigent person can be rejected if the suit is found to be barred by Res Judicata.

The Bench comprising Justice M.R. Shah and Justice M.M. Sundresh while upholding the judgment passed by the High Court and the Trial Court stated –

"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. … 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. 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."

Senior Advocate V. Mohana appeared on behalf of the appellants i.e., the original plaintiffs.

Advocate V. Parthiban represented the respondents i.e., the original defendants.

In this case, the appellants (original plaintiffs) instituted a suit before the Trial Court for declaration of title and for recovery of possession. In the suit, they filed an application seeking permission to file the suit as indigent persons. Such an application was opposed by the respondents (original defendants) on the grounds that the suit is barred by res judicata and that there is no cause of action for filing the suit. The Trial Court rejected the application and therefore, such an order was the subject matter before the High Court. The High Court while upholding the decision of the Trial Court dismissed the appeal and observed that the suit is barred by res judicata and that if the subsequent suit is allowed would amount to an abuse of the process of the Court. Hence, the matter was before the Supreme Court.

The question before the Supreme Court, in this case, was, 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 Court observed, "… 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."

The Court further adjudged that it will be open for the defendants to file an appropriate application to reject the plaint under Order 7 Rule 11 CPC.

The Apex Court also said, "… 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."

Accordingly, the Court disposed of the appeal.

Cause Title – Solomon Selvaraj & Ors. v. Indirani Bhagawan Singh & Ors.

Click here to read/download the Judgment