Whether second suit will be barred by O 7 R 11 of CPC if previous pauper application was withdrawn without seeking leave of court?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

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Whether plaintiff can file application seeking permission to sue as indigent person in appeal if his application was rejected by trial court?

 In our view, the dismissal of application made Under Order 33 Rule 1 of the Code by the Trial Court in the earlier round of litigation is not a bar against the Plaintiff to file an application/appeal Under Order 44 Rule 1 of the Code before the Appellate Court. The grant and rejection of such prayer by the Trial Court is confined only up to the disposal of the suit. This is clear from the reading of Rule 3(1) and 3(2) of Order 44, which contemplate holding of inquiry again into the question at the appellate stage as to whether the applicant is an indigent person or not since the date from the decree appealed from.

31. Once the Plaintiff files an appeal Under Order 44 of the Code, his case is governed by the provisions of Order 44. The applicant to whom the permission was granted or declined by the trial court is entitled to apply before the appellate court to allow him to continue with the status or grant the status so as to enable him to prosecute the appeal as an indigent person.

32. This is subject to applicant filing an affidavit as required Under Order 44 Rule 3(1) where the status is granted to him by the trial court. If the averments in his affidavit are controverted by the State, an inquiry into the status of the applicant as to whether he is an indigent person since the date of decree appealed from is mandatory at the appellate stage as contemplated Under Order 44 Rule 3(1).

33. So far as Clause (2) of Order 44 Rule 3 of the Code is concerned, it deals with the cases where the applicant was declined the status of an indigent person by the trial court in the suit. In such case, the applicant is entitled to say that he is or has become an indigent person since the date of decree appealed from and, therefore, entitled to prosecute the appeal as an indigent person. In such case also, an inquiry is required to be held to decide his status.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 117 of 2019 

Decided On: 07.01.2019

 Sushil Thomas Abraham  Vs.   Skyline Build. and Ors.

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Which property will have to be excluded from consideration by court for grant of permission to sue as indigent person?

 On perusal of Order 33 of the Code, we find that the Plaintiff is entitled to file a suit as an "indigent person" Under Order 33 of the Code provided he is able to prove that he is not possessed of sufficient means to pay the requisite court fees prescribed by law for the plaint in the suit filed by him.

The question as to whether the Plaintiff is possessed of sufficient means to pay the requisite court fees for the plaint in the suit as per the provisions of Court Fees Act is required to be decided by holding an inquiry as prescribed Under Rules 4 to 7 of Order 33 of the Code by the trial court.

21. While examining this question, the Court cannot take into consideration the two properties. First-the property, which is exempted from the attachment in execution of a decree and the second-which is subject matter of the suit. In other words, the aforementioned two properties cannot be regarded as "possessed" by the person concerned for determining his financial capacity to pay the requisite court fees on his claim in the suit.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 117 of 2019 

Decided On: 07.01.2019

 Sushil Thomas Abraham  Vs.   Skyline Build. and Ors.

Hon'ble Judges/Coram:

Abhay Manohar Sapre and Indu Malhotra, JJ.

Citation: 2019(5) MHLJ 545

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Whether a person can be permitted to file appeal as an indigent person if his application to file suit as indigent person has been rejected?

 In our view, the dismissal of application made Under Order 33 Rule 1 of the Code by the Trial Court in the earlier round of litigation is not a bar against the Plaintiff to file an application/appeal Under Order 44 Rule 1 of the Code before the Appellate Court. The grant and rejection of such prayer by the Trial Court is confined only up to the disposal of the suit. This is clear from the reading of Rule 3(1) and 3(2) of Order 44, which contemplate holding of inquiry again into the question at the appellate stage as to whether the applicant is an indigent person or not since the date from the decree appealed from.

31. Once the Plaintiff files an appeal Under Order 44 of the Code, his case is governed by the provisions of Order 44. The applicant to whom the permission was granted or declined by the trial court is entitled to apply before the appellate court to allow him to continue with the status or grant the status so as to enable him to prosecute the appeal as an indigent person.

32. This is subject to applicant filing an affidavit as required Under Order 44 Rule 3(1) where the status is granted to him by the trial court. If the averments in his affidavit are controverted by the State, an inquiry into the status of the applicant as to whether he is an indigent person since the date of decree appealed from is mandatory at the appellate stage as contemplated Under Order 44 Rule 3(1).

33. So far as Clause (2) of Order 44 Rule 3 of the Code is concerned, it deals with the cases where the applicant was declined the status of an indigent person by the trial court in the suit. In such case, the applicant is entitled to say that he is or has become an indigent person since the date of decree appealed from and, therefore, entitled to prosecute the appeal as an indigent person. In such case also, an inquiry is required to be held to decide his status.

34. We cannot, therefore, concur with the view taken by the High Court because the High Court did not hold any inquiry as contemplated Under Order 44 Rule 3(2) of the Code and dismissed the Appellant's application made Under Order 44 Rule 1 of the Code mainly on the ground that since the Appellant was declined permission to institute the suit as an indigent person by the Trial Court in the earlier round and such rejection having been upheld by the High Court in appeal, he cannot be permitted to file an application/appeal Under Order 44 Rule 1 of the Code as an indigent person in appeal. In our view, this reasoning of the High Court is not in conformity with the Order 33 read with Order 44 and hence cannot be upheld in the light of our discussion made above.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 117 of 2019 (Arising out of SLP (C) No. 19516 of 2014)

Decided On: 07.01.2019

Sushil Thomas Abraham  Vs. Skyline Build. and Ors.

Hon'ble Judges/Coram:

Abhay Manohar Sapre and Indu Malhotra, JJ.

Citation:(2019) 3 SCC 415

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Whether a person can be permitted to file appeal as indigent person if he was denied permission to file suit as indigent person?

 In our view, the dismissal of application made Under Order 33 Rule 1 of the Code by the Trial Court in the earlier round of litigation is not a bar against the Plaintiff to file an application/appeal Under Order 44 Rule 1 of the Code before the Appellate Court. The grant and rejection of such prayer by the Trial Court is confined only up to the disposal of the suit. This is clear from the reading of Rule 3(1) and 3(2) of Order 44, which contemplate holding of inquiry again into the question at the appellate stage as to whether the applicant is an indigent person or not since the date from the decree appealed from.

31. Once the Plaintiff files an appeal Under Order 44 of the Code, his case is governed by the provisions of Order 44. The applicant to whom the permission was granted or declined by the trial court is entitled to apply before the appellate court to allow him to continue with the status or grant the status so as to enable him to prosecute the appeal as an indigent person.

32. This is subject to applicant filing an affidavit as required Under Order 44 Rule 3(1) where the status is granted to him by the trial court. If the averments in his affidavit are controverted by the State, an inquiry into the status of the applicant as to whether he is an indigent person since the date of decree appealed from is mandatory at the appellate stage as contemplated Under Order 44 Rule 3(1).

33. So far as Clause (2) of Order 44 Rule 3 of the Code is concerned, it deals with the cases where the applicant was declined the status of an indigent person by the trial court in the suit. In such case, the applicant is entitled to say that he is or has become an indigent person since the date of decree appealed from and, therefore, entitled to prosecute the appeal as an indigent person. In such case also, an inquiry is required to be held to decide his status.

34. We cannot, therefore, concur with the view taken by the High Court because the High Court did not hold any inquiry as contemplated Under Order 44 Rule 3(2) of the Code and dismissed the Appellant's application made Under Order 44 Rule 1 of the Code mainly on the ground that since the Appellant was declined permission to institute the suit as an indigent person by the Trial Court in the earlier round and such rejection having been upheld by the High Court in appeal, he cannot be permitted to file an application/appeal Under Order 44 Rule 1 of the Code as an indigent person in appeal. In our view, this reasoning of the High Court is not in conformity with the Order 33 read with Order 44 and hence cannot be upheld in the light of our discussion made above.

36. In other words, if the Appellant is able to prove in the inquiry with the aid of evidence that he is or has become an indigent person since the date of decree appealed from and is therefore unable to pay the ad valorem court fees on memorandum of appeal, his application will be allowed else dismissed.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 117 of 2019 (Arising out of SLP (C) No. 19516 of 2014)

Decided On: 07.01.2019

Sushil Thomas Abraham  Vs. Skyline Build. and Ors.

Hon'ble Judges/Coram:

Abhay Manohar Sapre and Indu Malhotra, JJ.

Citation: AIR 2019 SC 512

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Whether legal heirs can take advantage of indigency of their predecessor in interest?

Indigency is personal economic condition. Therefore, in case more than one person intend to sue as indigent persons, indigency of all persons together is to be considered. Even though one of them would be indigent or both individually would be indigent but the means possessed by them together would be sufficient to pay the court-fee payable, permission ought not to be granted. Since indigency is personal, legal representatives cannot take advantage of the indigency of their predecessor in interest who died applying for permission or continued the suit after being permitted. 

Orissa High Court

Chayamani Tripathy And Anr. vs Dharmananda Panda on 16 June, 1992

Equivalent citations: AIR 1993 Ori 23

Bench: S Mohapatra

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Whether court can decide that legal heirs of deceased pauper applicant is also pauper without issuing notice to other side or collector?

Adverting to the next point, it is true, as rightly pointed out by the learned counsel for the revision petitioner, that the order does not say that notice was issued in deciding the status of the legal representative in the proceeding, commenced under order 33, to the other side though there is a mention, that the Government did not file any objections. Hence, it is obvious that the procedure followed by the learned Civil Judge is illegal in not issuing notice to the other side who has also a right to contest the proceeding. Hence, the revision petition is partly allowed. The order passed by the learned Civil Judge holding that the legal representative is not a papuer within the meaning of Order 33 C.P.C. is set aside. The learned Civil Judge is now directed to issue notice on the application given by the legal representative for getting the immunity contemplated under Order 33 CPC to the respondents in the appeal as also to the Government and give adequate opportunity to the parties to adduce additional evidence if they so desire. He shall thereafter proceed to dispose of the application given under Order 33 CPC and then proceed to dispose of the appeal in accordance with law.

Karnataka High Court

Saraswatewwa And Anr. vs Shivarudrappa Channappa Kinnala ... on 20 August, 1980

Equivalent citations: AIR 1981 Kant 8, ILR 1981 KAR 225, 1980 (2) KarLJ 373

Bench: G Sabhahit

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When legal heir of deceased pauper applicant can be permitted to sue in forma pauperis as per O 33 of CPC?

"But the view taken by this Court in Salam B. S. R. V. Motors Private Ltd. v. S. S. Krishna Sastry(AIR 1962 Mys 47) is that the right to sue as a pauper is a personal right distinct and separate from the right to sue for redress of wrong and dies with the person. The same view was taken up by the former High Court of Mysore in Devaraju Naidu v. T. M. Prabhuvaiah (AIR 1953 Mys 57). This is also the view taken in Lalit Mohan Mandal v. Satish Chandra Das ((1906) ILR 33 Cal 1163); Mt. Janikibai v. Mt. Bhikai (AIR 1933 Nag 334) and Subbiah v. Bala Tripura Sundara Boyamma (AIR 1928 Mad 278)."

"I should follow the view already taken by this Court which is also supported by preponderance of authority that the right to sue as a pauper is a personal right which dies with the plaintiff although this view was expressed by Somanath Iyer, J., in considering the question whether the legal representative of the deceased applicant when sued in forma pauperis can continue such an application when the original applicant dies during the pendency of such application."

"Once it is held that the right to sue in forma pauperis is a personal right which dies with the plaintiff who was granted such permission, it must follow that the petitioner who is the legal representative of the deceased plaintiff cannot be permitted to continue the suit unless he pays the Court fee or establishes that he himself is also a pauper".

4. Thus, it is obvious that the view taken by the Allahabad High Court has not found favour with this Court. It may further be mentioned that in a recent decision of the Bombay High Court, a Division Bench of that Court in the case of Santok Singh v. Radheshyam, , has dealt with this matter at great length reviewing the case law and has arrived at the same conclusion viz., that the privilege to sue in forma pauperis is a personal privilege given to the person and that that benefit would not extend to the legal representative of the plaintiff if the plaintiff dies during the pendency of the suit. The Bombay High Court has also explained the observation of the Supreme Court made in a different context in , followed in . Similar is the view expressed in . That being so, I am satisfied that the learned Civil Judge was justified in holding that the legal representative of the original plaintiff has to either pay the Court fee or prove that he could also enjoy the immunity provided under Order 33 Rule 1 C.P.C.

Karnataka High Court

Saraswatewwa And Anr. vs Shivarudrappa Channappa Kinnala ... on 20 August, 1980

Equivalent citations: AIR 1981 Kant 8, ILR 1981 KAR 225, 1980 (2) KarLJ 373

Bench: G Sabhahit

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Procedure to be followed by court when exemption is granted in respect of payment of court fees

In this case the legal position seems to be quite omnificent that under Notification it is a case of exemption and under Order XXXIII of the Code it is a case of deferment of Court-fees on the success of the plaintiff. In this case since the exemption was granted under Notification, therefore, directly the case of Vandana Bhargava (supra), which is on Order XXXIII is not applicable on the facts of this case.

But it would be logical to hold that a case of exemption granted under section 35 of the Court Fees Act is also a case of personal right because under the notification exemption is granted to the persons and on his death the exemption would come to an end automatically. Therefore, the Court below has rightly directed the applicants that if their case is covered by the Notification and they are entitled to seek exemption they may file proper application and satisfy the Court. Thus, looking to the language of Notification it would not be prudent to hold that the exemption would continue even after the death of a person in whose favour it was granted because after the death of the plaintiff, the legal representatives have to prove that they are entitled to prosecute the suit and right to sue survive in their favour and they are also entitled to get the relief. It is logical because thereafter they will also get the benefit and fruits of the decree. The purpose of exemption is to protect the weaker section of the society from exploitation as per the constitutional requirement under Article 39A of the Constitution of India. Exemption from payment of Court-fees to the persons belonging to the weaker society is a constitutional mandate to provide free legal aid on the basis of equal opportunity for securing justice which should not be denied to the citizens by reason of economic disability. Though Shri Kochatta very vehemently submitted that the L.Rs. will have a right to continue with the suit irrespective of their means but since the aforesaid Notification is applicable to persons those who are falling within the specified category, therefore, after the death, the legal representatives would not be entitled to get the benefit of the same, unless they file application and prove that they are also entitled to get the benefit of the notification and also entitled for exemption from payment of Court-fees.

Once exemption is granted under Notification, may not be withdrawn or available for reconsideration to the parties during the pendency of the suit, even if minor attains majority, unskilled labourer become skilled, labourer or landless labour gets land, in that case the position of the date of suit may be material but this may not apply in a case of death, as has been argued by Shri R.C. Kochatta. It is not the intention of the Notification that benefit should be conferred on the L.Rs. even after the death of the deceased plaintiff; and also in the case when they are in a position to pay Court-fees. Thus this direction will safeguard the interest of the L.Rs. of the plaintiff that if they are also entitled to take the benefit of the Notification, they can also file application and satisfy the Court that they are also entitled for exemption, as has been directed by the trial Court in this case. Thus, the said direction will protect the interest of the L.Rs. as per the intention and spirit of the Notification.

 Citation: 2003(1)MPLJ290

IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)

Civil Revision No. 121 of 2000

Decided On: 04.10.2002

 Mangilal s/o Mohanlal Porwal  Vs. Rameshchandra s/o 
Balmukand Porwal and others

Hon'ble Judges/Coram:
A.K. Gohil, J.

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Whether company can sue in forma pauperis?

Therefore, the word 'person' has to be given its meaning in the context in which it is used. It refers to a person who is capable of filing a suit and this being a benevolent provision, it is to be given an extended meaning. Therefore, we are of the view that a public limited company, which is otherwise entitled to maintain a suit as a legal person, can very well maintain an application under Order XXXIII, Rule 1 CPC. We hold that the word 'person' mentioned in Order XXXIII includes not only a natural person but other juridical persons also. The appeal is, therefore, without any merit and dismissed without any order as to costs.

Supreme Court of India

Union Bank Of India vs Khader International ... on 8 May, 2001

Bench: U.C. Banerjee, K.G. Balakrishnan

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