Order 33 Rule 1 CPC - Application To Sue As Indigent Can Be Rejected If It Is Found That The Suit Is Barred By Res Judicata : Supreme Court

The Supreme Court observed that an application to sue as indigent under Order XXXIII Rule 1 of Code of Civil Procedure can be rejected if it is found that the suit is barred by res judicata.

In this case, the plaintiffs filed an application to permit them to sue as indigent persons under Order 33 rule 1 CPC. The said application was dismissed by the Trial 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. The Madras High Court upheld this order and thus the plaintiffs approached the Apex Court in appeal.

Before the Apex Court, the plaintiffs-appellants contended that, at the stage of considering the application to sue as indigent persons, it was not open for the Trial 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, it was submitted. The defendants- respondents justified the impugned orders and contended that the suit is liable to be dismissed on the ground being barred by res judicata.

The issues thus were (1) whether on the aforesaid ground the application under Order 33 Rule 1 CPC to sue as indigent persons could have been rejected by the Trial Court?(2) 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)?

To answer these issues, the bench referred to relevant provisions of Order 33 CPC. It noticed 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). 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.", the court observed. 

The court clarified that any observations made by the 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. Taking note of the Order 33 Rule 15 and 15A CPC, the bench granted the plaintiffs further four weeks' time to pay the requisite court fees and directed that 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.

Case details

Solomon Selvaraj vs Indrani Bhagawan Singh | 2022 LiveLaw (SC) 1004 | CA 8885 OF 2022 | 3 December 2022 | Justices MR Shah and MM Sundresh

Counsel: Sr. Adv V. Mohana, Advocates Raghunath and Sriram Parakkat for appellants, Adv V. Parthiban for respondents

Headnotes

Code of Civil Procedure, 1908 ; Order XXXIII Rule 1 - 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 - However, observations 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. (Para 6.4-6.6)

Code of Civil Procedure, 1908 ; Order XXXIII Rules 1,7,8 - If the application to sue as indigent person is granted thereafter the suit shall be numbered and registered - Till then the plaint/suit shall be at pre-numbered and pre-registered stage. (Para 6.2)

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