Saturday, 26 October 2019

Whether second suit will be barred by O 7 R 11 of CPC if previous pauper application was withdrawn without seeking leave of court?

"13. We are also of the view that the High Court was in error in holding that by an application to sue in forma paupers, the applicant prays for relief personal to himself. An application to sue in forma pauperis, is but a method prescribed by the Code for institution of a suit by a pauper without payment of fee prescribed by the Court Fees Act. If the claim made by the applicant that he is a pauper is not established the application may fail. But there is nothing personal in such an application. The suit commences from the moment an application for permission to sue in forma pauperis as required by Order 33 of the Code of Civil Procedure is presented and Order 1 Rule 10 of the Code of Civil Procedure would be as much applicable in such a suit as in a suit in which court fee had been duly paid......"

(underline supplied)

11. On a reading of Order 23 Rule 1(4) CPC, it will be clear that where a plaintiff (which expression contextually includes an applicant in an indigent original petition as well), abandons any suit or part of claim under sub-rule (1) or withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. It has been declared in a catena of decisions that this bar is absolute and it is founded on public policy that nobody shall be vexed twice in respect of the same subject matter, which takes in cause of action as well. Since I have already found that the original proceedings instituted by an indigent person is a harbinger of a suit, the bar under Order 23 Rule 1(4) CPC directly applies to such proceedings as well. From that angle too, it is clear that the second suit is barred by the provisions of law provided in Order 7 Rule 11(d) CPC.

IN THE HIGH COURT OF KERALA

R.F.A. No. 271 of 2018

Decided On: 21.01.2019

 Revi Vs.  Shiny and Ors.

Hon'ble Judges/Coram:
A. Hariprasad, J.

Citation: AIR 2019(NOC) 404 Ker


1. Heard the learned counsel for the appellant and respondents.

2. The appeal is against an order passed by the 1st Additional Sub Judge, Thrissur on I.A. No. 5118 of 2015 in O.S No. 17 of 2015, challenging maintainability of the original petition (indigent) filed by the appellant herein. According to the Trial Court, the original petition is barred under Order 23 Rule 1(4) of the Code of Civil Procedure, 1908 (in short 'CPC'), even though the Trial Court has wrongly mentioned the provision as Order 23 Rule 4 CPC in the impugned order.

3. Facts, relevant, are stated in brief:--

The appellant (plaintiff) approached the court below to set aside a registered document executed by him in favour of the first defendant. Initially, he filed an original petition as an indigent person (POP No. 16 of 2007) stating the grounds, on which he attacked the document. Later, the petition was dismissed as withdrawn on 13/04/2007. It is important to note that the appellant did not take any permission from the court for withdrawal of the original proceedings in POP No. 16 of 2007. In fact, he, on noticing some formal defects, endorsed that the petition is not pressed.
4. Subsequently, the appellant preferred POP No. 19 of 2007. Parties in both the actions are the same. Subject matter and reliefs claimed are also the same. It is contended by the respondents/defendants that the second petition is barred under Order 23 Rule 1(4) CPC and also the original petition has to be rejected under Order 7 Rule 11(d) CPC since it is evident from the statement in the proceedings itself that it is barred by law.

5. The Court below, after examination of the rival contentions, arrived at a conclusion that the original petition POP No. 16 of 2007 was akin to a suit and therefore not pressing the proceedings would amount to abandonment of a suit inviting the wrath of Order 23 Rule 1(4) CPC. For the same reason, the court below entered a finding that the second proceedings on the same subject matter is liable to be rejected as if it is a plaint by invoking Order 7 Rule 11(d) CPC.

6. Learned counsel for the appellant stoutly argued that the Court below committed a grave error in dismissing the original petition. First of all, it is contended that an original petition filed by an indigent person cannot be treated as a suit. According to him, the question that is to be resolved at the initial stage is only about indigency of the petitioner. This submission is strongly opposed by the learned counsel for the respondents.

7. It is a fundamental principle that for all practical purposes an original petition filed by an indigent person, taking shelter under the provisions of Order 33 CPC, has to be regarded as a plaint in all respects. Reasons are many for this proposition. Firstly, if a petitioner is allowed to institute and prosecute an action as an indigent person, the original petition will be converted into a suit and the liability for payment of court fee will depend on the result of the case as provided in Order 33 CPC. It can also be seen that institution of such a suit will relate back to the date of filing of the original petition. Secondly, even if the petitioner is found not to be an indigent person, the court cannot straight away dismiss the action, but shall allow him an opportunity to pay court fee and prosecute the proceedings as an ordinary original suit. In that event also, date of institution of the suit is the date of institution of the original petition. Thirdly, the original petition should satisfy all the requirements of pleadings prescribed under Orders 6 and 7 and also the forms set out in the Appendix to CPC since the same will be later converted as a regular suit. Fourthly, on allowing an indigent person to continue with the suit, the Court is bound to follow the procedure prescribed in the CPC for trial of a regular suit. Viewing from any angle, I am unable to agree with the contention of the learned counsel for the appellant that institution of an original petition by an indigent person cannot be equated to institution of a suit. Therefore, this contention is rejected.

8. Then the next contention to be answered is whether the appellant can oppose the finding of the Court below by taking recourse to the provisions in Order 33 Rule 15 CPC. For clarity, it is extracted hereunder:

"15. Refusal to allow applicant to sue as an indigent person to bar subsequent application of like nature.--An order refusing to allow the applicant to sue as an indigent person shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue; but the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such right:

Provided that the plaint shall be rejected if he does not pay, either at the time of the institution of the suit or within such time thereafter as the Court may allow, the costs (if any) incurred by the State Government and by the opposite party in opposing his application for leave to sue as an indigent person."

9. On a careful perusal of the above provision, it will be clear that an order refusing to allow the applicant to sue as an indigent person shall be a bar only to a subsequent application of the like nature by him in respect of the same right to sue. It is patently clear for the same reason that what is supposed to be inquired into by the court at that stage is only regarding the means of the applicant to pay court fee. In other words, there is no finding entered by the court at that time touching on the merits of the claim. The provision itself makes it clear that the applicant shall be at liberty, despite the court finding that he is not an indigent person, to institute a suit in the ordinary manner in respect of such a right. The proviso to the provision may not be relevant to the facts in this case.

10. Learned counsel for the respondents relied on a decision of the Supreme Court in Vijai Pratap Singh v. Dukh Haran Nath Singh and Another MANU/SC/0394/1962 : 1964 KHC 378 : AIR 1962 SC 941 : 1964 (1) KLR 226 : 1962 Supp (2) SCR 675 : 1962 ALJ 634 : ILR 1962 (2) All 831 to contend that for all practical purposes, an indigent petition has to be regarded as a suit. The principles in paragraph 13, though rendered in a different factual context, indicate the inferences that are drawable in this regard. Relevant portion is quoted for clarity:

"13. We are also of the view that the High Court was in error in holding that by an application to sue in forma paupers, the applicant prays for relief personal to himself. An application to sue in forma pauperis, is but a method prescribed by the Code for institution of a suit by a pauper without payment of fee prescribed by the Court Fees Act. If the claim made by the applicant that he is a pauper is not established the application may fail. But there is nothing personal in such an application. The suit commences from the moment an application for permission to sue in forma pauperis as required by Order 33 of the Code of Civil Procedure is presented and Order 1 Rule 10 of the Code of Civil Procedure would be as much applicable in such a suit as in a suit in which court fee had been duly paid......"

(underline supplied)

11. On a reading of Order 23 Rule 1(4) CPC, it will be clear that where a plaintiff (which expression contextually includes an applicant in an indigent original petition as well), abandons any suit or part of claim under sub-rule (1) or withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. It has been declared in a catena of decisions that this bar is absolute and it is founded on public policy that nobody shall be vexed twice in respect of the same subject matter, which takes in cause of action as well. Since I have already found that the original proceedings instituted by an indigent person is a harbinger of a suit, the bar under Order 23 Rule 1(4) CPC directly applies to such proceedings as well. From that angle too, it is clear that the second suit is barred by the provisions of law provided in Order 7 Rule 11(d) CPC.

12. Learned counsel for the appellant relying on a judgment inter parties in W.P(C) No. 9240 of 2008 rendered by a learned Single Judge contended that the present contention was not raised by the first defendant when she challenged before this Court an amendment application to the indigent original petition. Learned Single Judge considered the contentions raised by the first defendant regarding the extent and magnitude of the amendment and without expressing any opinion on maintainability of the original petition directed the parties to rake up all legal contentions at a later point in time, i.e., at the time of trial of the suit. This judgment cannot operate as estoppel against the first respondent in urging a claim that the original petition is not maintainable for the aforementioned reasons.

13. Another judgment relied on by the learned counsel for the appellant is one passed by a Division Bench of this Court in F.A.O. No. 246 of 2013. When there was a challenge regarding allowing the indigent original petition by the court below in favour of the appellant, this Court set aside the impugned order and directed the court below to pass a fresh order in the O.P (indigent) No. 19 of 2007 with reference to the observations made therein.

14. Again another order was challenged by the first defendant in O.P(C) No. 576 of 2015 before this Court. At the time of disposal of the original petition, this Court opined that at any point of time, the defendant or the State can show that the petitioner is not entitled to continue as an indigent person and at that time, the court can be called upon to consider this issue afresh. It is the submission of the learned counsel for the appellant that during none of these proceedings such a contention was raised. I find no legal bar for the first defendant to raise such a contention at any point in time because it is purely a question of law which can be raised at any time.

15. A decision cited by learned counsel in Harendra Kumar Basu v. Contai Bus Syndicate Ltd. and other MANU/WB/0039/1958 : AIR 1958 Cal. 182 is of no avail to him because a Division Bench of the Calcutta High Court was considering the alleged incongruity between Order 33 Rule 7 and Order 33 Rule 15 C.P.C. in that case. Such a question has no relevance in this case.

After hearing the learned counsel on both sides and on consideration of the above aspects, I am of the view that the impugned order passed by the Court below is perfectly legal and no interference is required. This appeal is not worthy of admission. Hence, it is dismissed.

All pending interlocutory applications will stand dismissed.


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