Case Number: Civil Appeal No.8885 of 2022
Judges Name: Hon’ble Judges M.R. Shah, J. and M.M. Sundresh, J
Order dated: : 02/12/2022

Facts of the case:

1. The Appellants (“Solomon Selvaraj and Ors.”) instituted the suit before the Trial Court for declaration of title and for recovery of possession. The Defendants (“Indirani Bhagawan Singh and Ors”) opposed the suits on the ground that the suit is barred by res judicata; there is no cause of action for filing the suit. The Appellants also claimed that they are indigent persons. 
2. The Trial Court had rejected the 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. 
3. The High Court 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.

Supreme Court observed/held as follows:

• 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, while considering Order 33 Rule 5, Code of Civil Procedure. By applying the law laid down in the case ofKamu Alias Kamala Ammal v. M. Manikandan and Anr.,(1998) 8 SCC 522, this Court has 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. 
• However, considering Order 33 Rule 15 and 15A Code of Civil Procedure 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 Code of Civil Procedure grant time to the applicant to pay the requisite Court fee within such time as may be fixed by the Court. 
• Further, on payment of the costs laid within Rule 15, 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, in the ordinary manner, therefore taking the into consideration Order 33 Rule 15A and Order 33 Rule 5 Code of Civil Procedure, instead of remanding matter to the learned Trial Court to pass an appropriate order granting the Appellants. 
• With regard to the observations made by the lower courts that the suit is barred by res judicata and/or on no cause of action shall be treated confined in nature 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 Code of Civil Procedure and/or any other application to reject the plaint and as and when such application is/are filed. The present appeal has been disposed of.