An application to sue as an indigent under Order XXXIII Rule 1 of the Code of Civil Procedure may be rejected if it is determined that the suit is barred by res judicata, according to a division bench of the Supreme Court on November 2. The division bench was composed of Justices MR Shah and MM Sundresh.

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.”

The issues filed before the apex court 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 person is rejected what order can be passed and what will be the remedy available to the plaintiff/(s).

The bench went to the pertinent clauses of Order 33 CPC in order to respond to these questions. It was noted that the grounds listed in Order 33 Rule 5 CPC can be used to deny a request made under Order 33 Rule 1 CPC for permission to suit as an indigent person.

"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 made it clear that any comments made by the Trial Court and the High Court regarding the suit being dismissed due to res judicata and/or lack of a cause of action would only be considered in evaluating the motion to sue as an indigent person. The bench gave the plaintiffs an additional four weeks to pay the necessary court fees, taking into consideration Order 33 Rule 15 and 15A CPC. The bench also ordered that, upon payment of those court fees, the suit shall be deemed to have been filed on the date the application for permission to sue as an indigent person was submitted.

The plaintiffs in this case submitted an application to be granted the right to launch a lawsuit under Order 33 rule 1 CPC. The Trial Court denied the motion on the grounds that the lawsuit was frivolous, an abuse of the legal system, and the court, and that res judicata barred it. The plaintiffs appealed to the Supreme Court after the Madras High Court upheld this order.

The plaintiffs-appellants argued before the Apex Court that it was improper for the Trial Court to comment on the merits of the case, the likelihood of the plaintiff's success, and/or whether the case is preempted by res judicata at the time the application to sue as an indigent person was being considered. It was stated that at the most, the court could deny the request to proceed as an indigent plaintiff. In that case, the plaintiffs could pay the necessary court costs and the case would then move forward. The defendants-respondents defended the contested orders and argued that res judicata precluded the lawsuit, making it subject to dismissal.

Case title: Solomon Selvaraj vs Indrani Bhagawan Singh

Citation: CA 8885 OF 2022

Link: -

http://scourtapp.nic.in/supremecourt/2022/25735/25735_2022_5_1506_40235_Judgement_02-Dec-2022.pdf