In an original petition challenging the allowance of a second application for indigent status, the court held that Order 23 CPC and res judicata do not bar a second application absent prior adjudication on the merits.
The original petition filed by the defendant seeking to quash the trial court order allowing the second indigent application was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
TUESDAY, THE 4TH DAY OF JULY 2023 / 13TH ASHADHA, 1945
OP(C) NO. 236 OF 2022
AGAINST THE ORDER/JUDGMENT IN O.S.2/2018 OF SUB COURT,
KOTTARAKKARA
PETITIONER/COUNTER PETITIONER/DEFENDANT:
VISHNU, AGED 27 YEARS,
AKSHAY NIVAS, MAVADI P.O, POOVATTOOR MURI,
KULAKKADA VILLAGE, KOTTARAKKARA TALUK, PIN - 691507
BY ADVS.
VISHNU BHUVANENDRAN
B.ANUSREE
RESHMA UNNIKRISHNAN
SREELAKSHMI B.
RESPONDENT/PETITIONER/PLAINTIFF:
SOUDHAMINI AMMA,
AGED 57 YEARS,
ERUPPAKKAL VEEDU, AVANEESWARAM P.O, VILAKKUDY VILLAGE,
PATHANAPURAM TALUK, KOLLAM, PIN – 691508
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04.07.2023,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) NO. 236 OF 2022
2
JUDGMENT
During the pendency of a suit, at the stage of
payment of balance court fee, an application was
preferred seeking permission to proceed with the suit
as an indigent person. Later on, it was not pressed
into service and yet another application was
submitted for the very same purpose, which was
allowed by the trial court under Ext.P6 order. It is
under challenge on the ground that the earlier
application was not pressed into service, hence the
plaintiff is debarred from maintaining a second
application and took support from Order 23 CPC. In
fact, Order 23 CPC has no application in the matter
of maintaining an application seeking permission to
sue as an indigent person. It is based on
non-availability of sufficient fund to pay the court
fee and depends on availability of funds during the
relevant time. It may change at any time. On change
of circumstance, a second application is also
maintainable, provided that the change of
OP(C) NO. 236 OF 2022
3
circumstance should be established. But in the
instant case, the earlier application was not pressed
into service presumably on the reason that there is
defect in the format of the application. In any view
of the matter a second application unless there is an
adjudication by the court in the earlier application
will not stand hit by Order 23 CPC or doctrine of
resjudicata.
The original petition hence fails and is
dismissed.
Sd/-
P.SOMARAJAN
JUDGE
msp
OP(C) NO. 236 OF 2022
4
APPENDIX OF OP(C) 236/2022
PETITIONER EXHIBITS
Exhibit P1TRUE COPY OF THE PLAINT IN O.S NO. 2/2018 ON
THE FILE OF COURT OF THE SUBORDINATE JUDGE,
KOTTARAKKARA
Exhibit P2TRUE COPY OF THE I.A NO. 1/2021 IN O.S NO.
2/2018 ON THE FILE OF COURT OF THE
SUBORDINATE JUDGE, KOTTARAKKARA
Exhibit P3TRUE COPY OF THE ORDER DATED 09.11.2021 IN
I.A NO. 1/2021 IN O.S NO. 2/2018 ON THE FILE
OF COURT OF THE SUBORDINATE JUDGE,
KOTTARAKKARA
Exhibit P4TRUE COPY OF THE I.A NO. 3/2021 IN O.S NO.
2/2018 ON THE FILE OF COURT OF THE
SUBORDINATE JUDGE, KOTTARAKKARA
Exhibit P5TRUE COPY OF THE OBJECTION FILED BY THE
OBJECTION IN I.A NO. 3/2021 IN O.S NO. 2/2018
ON THE FILE OF COURT OF THE SUBORDINATE
JUDGE, KOTTARAKKARA.
Exhibit P6TRUE COPY OF THE ORDER DATED 13.12.2021 IN
I.A NO. 3/2021 IN O.S NO. 2/2018 ON THE FILE
OF COURT OF THE SUBORDINATE JUDGE ,
KOTTARAKKARA
Exhibit P7TRUE COPY OF THE JUDGMENT DATED 20.11.2019 IN
O.S NO.2/2018 ON THE FILE OF COURT OF THE
SUBORDINATE JUDGE , KOTTARAKKARA
Exhibit P8TRUE COPY OF THE PROCEEDINGS SHEET IN O.S
NO.2/2018 BEFORE THE SUB COURT, KOTTARAKKARA
OBTAINED FROM E-COURT SERVICES .
3 issues framed by the court
Whether Order 23 CPC bars a second application for indigent status after a prior application was not pressed into service.
Whether the doctrine of res judicata applies to an application for permission to sue as an indigent person.
Whether a second application for indigent status is maintainable on change of circumstances.
1 provisions across 1 enactments
Vishnu
Soudhamini Amma
P. Somarajan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court