M.M. Sundresh JUDGMENT
M.R. Shah, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 28.01.2022 passed by the High Court of Judicature at Madras in CMA No. 38 of 2021 by which the High Court has dismissed the said Miscellaneous Appeal and has confirmed the order passed by the learned Trial Court rejecting an application filed by the Appellants herein seeking leave to file the suit as indigent persons, the original applicants - Plaintiffs have preferred the present appeal.
2. That the Appellants herein - original Plaintiffs instituted the suit before the learned Trial Court for declaration of title and for recovery of possession. In the said suit the Plaintiffs filed an application being I.O.P. No. 1 of 2015 permitting them to file the suit as indigent persons. The said application was opposed by the Defendants on the grounds inter alia that the suit is barred by res judicata; there is no cause of action for filing the suit. The claim of the Plaintiffs that they are indigent persons was also contested. The learned Trial Court rejected the said 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.
2.1. By the impugned judgment and order the High Court has 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.
3. Ms. V. Mohana, learned Senior Counsel appearing on behalf of the Appellants has vehemently submitted that in an application permitting the Plaintiffs to sue as indigent persons, it is not open for the learned Trial Court and/or the High Court to opine on merits of the suit and whether the Plaintiff is likely to succeed and/or whether the suit is barred by res judicata or not. It is submitted that at the most the Court may dismiss the application permitting to sue as indigent persons and in that case the Plaintiffs may pay the requisite court fees and thereafter the suit is to be proceeded further.
3.1. Ms. V. Mohana, learned Senior Counsel appearing on behalf of the Appellants has stated at the Bar that the Appellants are ready to pay the Court fees treating their application to sue as indigent persons dismissed.
4. Shri V. Parthiban, learned Counsel has appeared on behalf of the Respondents - original Defendants. It is submitted that the present suit is nothing but an abuse of process of court and the court's process. That the suit is liable to be dismissed on the ground being barred by res judicata.
4.1. It is submitted that at the time of deciding the application to sue as indigent persons it is open for the Court to consider whether the suit is an abuse of process of law and/or Court or not. Reliance is placed in the case of Kamu Alias Kamala Ammal v. M. Manikandan and Anr., MANU/SC/1258/1998 : (1998) 8 SCC 522.
5. Heard learned Counsel appearing for the respective parties at ........