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2014 DIGILAW 223 (KER)

Sushil Thomas Abraham v. Skyline Builders

2014-03-10

K.ABRAHAM MATHEW, T.R.RAMACHANDRAN NAIR

body2014
Judgment K. Abraham Mathew, J. 1. Rejection of an indigent application in a suit is no bar to file a subsequent application in respect of the same right to sue while refusal to allow the application is a bar to a second application. These different legal consequences that flow from the rejection of and the refusal to allow an indigent application make it necessary in this proceedings to dissect and examine the relevant provisions in Order 33 of the Code of Civil Procedure. 2. The petitioner is an engineer by profession. To recover Rs.74,66,107/- from the respondents he filed a suit in the form of an indigent application in the court of the II Additional Sub Judge, Thiruvananthapuram, which was taken on its file as O.P (Ind) 38 of 1996. Notice was issued to the respondents, who entered appearance and objected to the prayer. In the enquiry the learned Sub Judge held that since the petitioner did not disclose all his assets, he could not be allowed to sue as an indigent. The court 'disallowed' the prayer and directed him to pay the court fees. In CMA 248 of 1998 filed by the petitioner this court confirmed the order of the lower court. Subsequently the petitioner paid the required court fees. After trial the lower court dismissed the suit. Now the plaintiff wants to prefer an appeal against the decree as an indigent person. A preliminary objection has been raised by the respondents. The objection is that the application for leave to file the appeal as an indigent person is barred under Order 33 Rule 15 of the Code of Civil Procedure. 3. Heard Sri.Saji Issac and Sri.Vinod Bhat learned counsel appearing for the petitioner and the respondents respectively. We have also heard the learned government pleader. 4. The argument of Sri.Saji Issac is two fold: 1) Refusal to allow an indigent application in a suit is not a bar to entertain an application for the same purpose in the appeal from that suit, and 2) the order passed by the lower court is an order of rejection and not of refusal, and the bar under Order 33 Rule 15 of the Code of Civil Procedure, which applies only to an order of refusal, is inapplicable in this case. 5. 5. The relevant portion in Order 33 Rule 15 of the Code of Civil Procedure may be extracted: “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.” To attract the Rule two conditions are necessary: First, the earlier order was an order of refusal and not of rejection; and the second, the subsequent application is in respect of the same right to sue. 6. The first limb of the argument of the learned counsel for the petitioner is that Rule 15 only prohibits filing of a second application in the very same suit and not in an appeal from the decree passed in it. Sri.Vinod Bhat learned counsel for the respondent, on the other hand, relies on Order 44 Rule 1 which provides that all the provisions in Order 33 are applicable in an appeal. 7. Rule 15 disentitles a party from filing a subsequent application in respect of the same right to sue. The nature of the proceedings in which the second application is filed is irrelevant. What is only necessary is that the proceedings should be in respect of the same right to sue. If the right to sue is identical in both proceedings, Rule 15 is attracted. 8. What does right to sue mean? “The words 'right to sue' ordinarily mean the right to seek relief by means of legal proceedings. Generally, the right to sue accrues only when the cause of action arises, that is, the right to prosecute to obtain relief by legal means”.(State of Punjab and others v. Gurdev Singh (AIR 1991 SC 2219) 9. In respect of the same right to sue there can be various proceedings. It may be the very same suit in which the earlier application was filed, or another suit already instituted, or a fresh suit. It may be an appeal from the decree in which the earlier application was filed. One cannot say that an appeal filed against a decree is not a proceedings based on the right to sue on the basis of which the suit was filed. It may be an appeal from the decree in which the earlier application was filed. One cannot say that an appeal filed against a decree is not a proceedings based on the right to sue on the basis of which the suit was filed. We have no hesitation to hold that Rule 15 bars filing of a second application not only in the very same suit but also in any proceedings instituted in respect of the same right to sue including an appeal. 10. Order 44 Rule 1 of the Code of Civil Procedure provides that an application filed to prefer an appeal as an indigent person shall, in all matters, be subject to the provisions relating to suits by indigent person in so far as those provisions are applicable. As the provisions in Order 33 of the Code of Civil Procedure are applicable to all matters in an application filed under Order 44 Rule 1 of the Code of Civil Procedure, the provision in Order 33 Rule 15 of the Code of Civil Procedure also is applicable. Moreover, an appeal is a continuation of the suit. But as noted above, even without the aid of Order 44 Rule 1 it can be held that an application filed in an appeal is a second application attracting Rule 15. 11. We reject the contention of the petitioner that the present application filed by him is not a subsequent application since it is filed for obtaining leave to file appeal. 12. The second limb of the argument of the learned counsel for the petitioner is that even if it is held that a subsequent application filed in an appeal also is covered by Rule 15, the present application is not barred since the order passed on the first application filed in the suit was one of rejection and not refusal. 13. Learned counsel for the petitioner placed reliance on M/s. Sunita Chemicals Pvt. Ltd v. Canara Bank & others (AIR 1987 Karnataka 198) in support of his argument that in the case of rejection a second application is maintainable. There is no dispute with regard to that legal position. The controversy in this case is whether the order of the court was one of rejection or refusal. 14. There is no dispute with regard to that legal position. The controversy in this case is whether the order of the court was one of rejection or refusal. 14. Since the lower court had not examined the petitioner, nor had it issued notice to the government pleader before the enquiry conducted by it, the order passed by it can be treated only as an order of rejection, and not as an order of refusal contemplated under Order 33 Rule 7 of the Code of Civil Procedure, submits the learned counsel. 15. It is provided in Order 33 Rule 4 of the Code of Civil Procedure that where an indigent application is in proper form and duly presented, the court may, if it thinks fit, examine the applicant. Thereafter, it shall consider whether the application shall be proceeded with, or rejected on the grounds mentioned in Order 33 Rule 5 which reads thus: Rejection of application:-The court shall reject an application for permission to sue as an indigent person:- (a) Where it is not framed and presented in the manner prescribed by rules 2 and 3. (b) Where the applicant is not an indigent person. (c) Where he has, within two months next before the presentation of the application, disposed of any property fraudulently or in order to be able to apply for permission to sue as an indigent person. Provided that no application shall be rejected if, even after the value of the property disposed of by the applicant is taken into account, the applicant would be entitled to sue as an indigent person. (d) Where his allegations do not show a cause of action. (e) Where he has entered into any agreement with reference to the subject matter of the proposed suit under which any other person has obtained an interest in such subject matter. (f) Where the allegations made by the applicant in the application show that the suit would be barred by any law for the time being in force, or (g) Where any other person has entered into an agreement with him to finance the litigation. 16. If the application is not rejected the court shall fix a day for enquiry, notice of which shall be given to the opposite party as well as the government pleader. 16. If the application is not rejected the court shall fix a day for enquiry, notice of which shall be given to the opposite party as well as the government pleader. Evidence may be adduced by the applicant in proof of his indigency and by the opposite party in disproof thereof. The procedure in the enquiry is given in Rule 7, which runs thus: Procedure for hearing:- (1) On the day so fixed or as soon thereafter as may be convenient, the court shall examine the witnesses (if any) produced by either party, and may examine the applicant or his agent, and shall make a full record of their evidence. (1-A) The examination of the witnesses under sub-rule (1) shall be confined to the matters specified in Cl.(b), Cl.(c) and Cl.(e) of rule 5 but the examination of the applicant or his agent may relate to any of the matters specified in rule 5. (2) The court shall also hear any argument which the parties may desire to offer on the question whether, on the face of the application and of the evidence (if any) taken by the court under rule 6 or under this rule, the applicant is or is not subject to any of the prohibitions specified in rule 5. (3) The court shall then either allow or refuse to allow the applicant to sue as an indigent person. 17. Sub rule (1A) makes it clear that the applicant may be examined not only with regard to his indigency but also any of the grounds mentioned in Rule 5. But the examination of the witnesses shall be confined to the question of indigency only. 18. It was submitted by the learned counsel for the petitioner that the court did not examine the applicant immediately after the institution of the Original Petition. The provision in Rule 4 is so clear that even without a discussion we can hold that it is not mandatory for the court to examine the applicant under that provision. Even without his examination the court may post the case for enquiry if it is satisfied that the application may be proceeded with. Non examination of the applicant at that stage is not even an irregularity. The Code gives discretion to the court to examine or not to examine the applicant. In appropriate cases the court may dispense with his examination. 19. Non examination of the applicant at that stage is not even an irregularity. The Code gives discretion to the court to examine or not to examine the applicant. In appropriate cases the court may dispense with his examination. 19. The main contention of the petitioner is that the lower court failed to issue notice to the government pleader as provided in Rule 6. It is to give an opportunity to the government to place before the court the materials which may be relevant to decide the indigency of the applicant such a provision has been made. Essentially, the question of court fees is a matter between the applicant and the State. If at all anyone could be aggrieved by the failure to issue notice to the government pleader, it is only the State. In this case the government has no complaint. 20. A similar case came up for consideration before a Division Bench of the High court of Hyderabad in Siddappa and others vs. Mahadevamma (AIR 1955 Hyd.160). The High Court rejected the contention that an order passed without issuing notice to the government pleader is invalid. Relying on the decision of the High court of Hyderabad, this court in Balakrishnan vs. Narayanan Nair ( 1984 KLT 374 ) held that failure to issue notice to the government pleader is not a valid ground to set aside an order passed by the court after due enquiry. This was followed in Prabhakaran Nair vs. Neelakandan Pillai ( 1987(2) KLT 376 ). In both the above cases there was notice to the government pleader, but he did not file a report. 21. In a later decision a Division Bench of this court in Rosamma vs. Chacko ( 1999 (1) KLT 182 ) has made the following observation: “In this case there is nothing to show that the court has issued notice to the government pleader to file a report regarding the means of the petitioner to pay court fee. Thus the procedure adopted by the court in rejecting the application is not legal”. 22. Every provision in a statute, mandatory or directory, is meant for compliance only. In that sense non compliance with any provision is illegal. But the consequences of violation of mandatory or directory provisions are different. Ordinarily, non compliance with the former vitiates the proceedings, while the latter does not. 23. 22. Every provision in a statute, mandatory or directory, is meant for compliance only. In that sense non compliance with any provision is illegal. But the consequences of violation of mandatory or directory provisions are different. Ordinarily, non compliance with the former vitiates the proceedings, while the latter does not. 23. In Rosamma's case (supra) the Division Bench was of the opinion that the burden is on the opposite party to establish that the applicant is not an indigent person, the correctness of which does not require examination in this proceedings. The court held that the order of rejection was vitiated since no evidence was adduced by the opposite party to prove that the applicant was not an indigent person. The High Court did not hold that failure to issue notice to the government pleader will invalidate the order. The observation that failure to issue notice to the government pleader is not legal only means that it amounts to violation of a provision in the Code. It is not an authority to hold that if no notice is issued to government pleader before the application is posted for enquiry, the order is vitiated. The failure to issue notice to the government pleader did not cause any prejudice to the petitioner. We agree with the decisions in Balakrishnan v. Narayanan Nair and Prabhakaran Nair v. Neelakandan Pillai (supra). 24. Coming to the question of refusal, what the lower court said is that the prayer for permission to sue as an indigent is 'disallowed'. To disallow and to refuse mean the same thing. Refusal to grant the prayer for leave results in the dismissal of the application. When the court refuses to grant leave under Rule 7, its consequence is dismissal of the indigent O.P. 25. Now we shall consider the differences between the order of rejection and the order of refusal as it will help to understand the meaning of those two phrases in a better way. In legal parlance rejection of a proceedings takes place when there is an institutional defect warranting the proceedings being thrown out at the threshold, and dismissal takes place after consideration of the merits of the cause. 26. The grounds for both rejection and refusal are the same-those mentioned in Rule 5. What then is the difference between them, which we shall consider presently. 27. 26. The grounds for both rejection and refusal are the same-those mentioned in Rule 5. What then is the difference between them, which we shall consider presently. 27. When the question before the court is to reject or not to reject an application, the only materials before it are the indigent application and the statement of the applicant recorded in the course of examination (if any) of the applicant. They are voluntary statements of the applicant. Neither the opposite side nor the government pleader is before the court at that stage. Rejection of petition is thus ordered on the basis of the facts voluntarily disclosed by the applicant. The proceedings is summary in nature. On the other hand, in the enquiry under Rule 7 the opposite party participates unless he chooses not to do so. The report of the government also may be before the court. The facts brought out in the cross-examination of the petitioner and his witnesses and the report of the government (if any) are the materials taken into consideration before an order of refusal is passed. In other words, suppression of facts by the applicant in his O.P, and in his examination under Rule 4 is the basis on which order of refusal is passed. In the case of refusal there is dishonesty on the part of the applicant, which is the reason why a bar has been created under Rule 15 for his filing another application. 28. Non examination of the petitioner under Rule 4 or non issuance of notice to the government pleader under Rule 6 does not affect the validity of the order of refusal passed if there has been an enquiry as provided in Rule 7. 29. In Harendra Kumar Basu v. Contai Bus Syndicate Ltd. & others (AIR 1958 Cal.182) the trial court posted the application filed under Order 33 Rule 1 for the enquiry under Rule 7. On the failure of the petitioner to adduce evidence inspite of several adjournments, the court dismissed it. The petitioner filed a second application. The High Court held that even if no evidence is adduced by the petitioner, the order is one of refusal and the second application is not maintainable. 30. On the failure of the petitioner to adduce evidence inspite of several adjournments, the court dismissed it. The petitioner filed a second application. The High Court held that even if no evidence is adduced by the petitioner, the order is one of refusal and the second application is not maintainable. 30. In the light of the discussion made above, we hold that after the posting of an indigent application for enquiry under Rule 7 the only order which the court can pass is an order of refusal. There is no merit in the argument that the order passed by the Sub Court is an order of rejection. 31. We repel the argument of the learned counsel for the petitioner and hold that the refusal of the trial court to grant the petitioner leave to sue as an indigent person disentitles him from filing the appeal as an indigent person against the decree in the suit. In the result, this CMC Petition is dismissed. The petitioner is granted one month's time to pay the court fees.