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Venkatasubbaiah Vs. Thirupathiah and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. No. 338 of 1951
Judge
Reported inAIR1955AP165
ActsCode of Civil Procedure (CPC), 1908 - Order 33, Rules 1, 5 and 6
AppellantVenkatasubbaiah
RespondentThirupathiah and ors.
Appellant AdvocateN. Rajeswara Rao, Adv.
Respondent AdvocateN. Bapiraju and ;G. Ramachandradu, Advs. for ;K.K. Kotayya, Adv.
Excerpt:
.....of items 22 to 25 were made by the father during the lifetime of the first..........if evidence is adduced, to decide whether the plaintiff has a cause of action and whether the suit is barred by any law. section 405, civil p. c., 1882, corresponds to o.33, r. 5. in s. 405 of the old act, the words used were 'that his allegations do not show a right to sue in such court'. when it was contended that the words referred only to the question of jurisdiction, courts haveheld that the words were wide enought to enable courts to decide whether an application showed a subsisting cause of action capable of enforcement in court and calling for an answer and not barred by the law of limitation of any other law. see -- 'vijendra tirhta swami v. sudhindra', 19 mad 197 (a) and 'amirtham v. alwar manikam', 27 mad 37 (b).order 33, r. 5 (d) was substituted for the old clause.....
Judgment:

Subba Rao, C.J.

(1) This is Civil Miscellaneous Appeal against the order of the learned subordinate Judge, Narasaraopet, dismissing O. P. No. 1 of 1949, a petitiion filed for leave to sue in forma pauperis against respondents 32 to 36 on the ground that the petitioner has no cause of action against them.

(2) The said O. P. was filed for leave to sue in froma pauperis for setting aside certain alienations made by the petitioner's father, of the joint family properties and for partition of the scheudle properties. In the petition, it is alleged that the alienations were not supported by consideration and were also made for purposes not binding on the family. The petition discloses that item 7, 8, 11 to 14, 16 to 18, 21 and 26 were alienated after the petitioner's birth, but items 22 to 25 were sold on 4-6-1928 and 3-7-1928 i.e., prior to the petitioner's birth. It is alleged in the petition that the father had another son, who was born in October 1928 and died in March 1930 and, therefore, the said alienations also were not binding on the family.

(3) The learned Subordinate Judge made an elaborateenquiry and held that it has not been established that the petitioner's father had another sonwho was born and who died between October 1928 and March 1930 and therefore the petitioner hadno cause of action in respect of items 22 to 25. though he held that the petitioner was a pauer and that he has a caquse of action in respect of other items, he dismissed the petition in so far as respondents 32 to 36 were claiming items 22 to 25. The present appeal is filed against the said order.

(4) The main question in this appeal is whether the Court has power to make an elaborate enquiry under O. 33, R. 6, Civil P. C., and decide the question whether the petitioner has a cause of action as it would do in the suuit. To give a satisfactory answer to this question, it is necessary to trace the history of the rule. The lastest rules as amended by the Madras High Court, which also gover this Court, read as follows:

'R. 5: The Court shall reject an applicatioin for permission to sue as a pauper.

a. Where it is not framed and presented in the manner prescribed by Rr. 2 and 3, or

b. Where the applicant is not a pauper, or

c. Where he has, within two months next before the presentation of the application disposed of any property fradulently or in order to be able to apply for permission to sue as a pauper, or

d. Where the allegations do not show a cause of action, or

(d-1) Where the suit apears to be barred by any law, or

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.

R. 6. Where the Court sees no reason to reject the application on any of the grounds stated in R. 5, it shall nevertheless fix a day (of which at least ten days' clear notice shall be given to the opposite party and to the Government Pleader) for receiving such evidence as the applicant may adduce to prove that the applicatioin is not subject to any of the prohibitions in R. 5 and for hearing any evidence which may be adduced to the contrary'.

(5) The argument of the learned Counsel for the respondent is that cls. (d) and (d-1) of R. 5 read along with R. 6 as amended by the Madras High Court, make it incumbent upon the Court if evidence is adduced, to decide whether the plaintiff has a cause of action and whether the suit is barred by any law. Section 405, Civil P. C., 1882, corresponds to O.33, R. 5. In S. 405 of the old Act, the words used were 'that his allegations do not show a right to sue in such Court'. When it was contended that the words referred only to the question of jurisdiction, Courts haveheld that the words were wide enought to enable Courts to decide whether an application showed a subsisting cause of action capable of enforcement in Court and calling for an answer and not barred by the law of limitation of any other law. See -- 'Vijendra Tirhta Swami v. Sudhindra', 19 Mad 197 (A) and 'Amirtham v. Alwar Manikam', 27 Mad 37 (B).

Order 33, R. 5 (d) was substituted for the old clause adopting the interpretation put upon the corresponding words in the old Code. The amendeed clause again came under Judicial Scrutiny and Courts have invariably held that Courts should not embark on an elaborate enquiry and decide complicated questions of law and fact to ascertain whether the petition disclose a cause of action or not, See -- 'Kamani Devi v. Kameshwar Singh', AIR 1946 Pat 316 (C), and 'U Ba Dwe v. Mg. Lu Pan', AIR 1932 Rang 107 (FB) (D). If the Court did not reject the application for permission to sue as a pauper for any one of the prohibitions mentioned in R. 5, under R. 6 a duty is cast on the Court to fix a day for receiving such evidence as the applicant may adduce in proof of his pauperism and for hearing any evidence which may be adduced in disproof thereof.

A combined reading of R. 5 and 6 indicates that the Court is not bound to give any opportunity to the petitioner to establish that the petition is not vitiated by any of the prohibitions mentioned in R. 5 and that his right is confined only to adduce evidence in proof of his pauperism. So too, if the Court does not see any ground for rejecting an application under R. 5, the respondent has no right under R. 6, to establish that the petition is liable to be dismissed for any one of the reasons mentioned in R. 5.

(6) The Madras High court amended R. 5 and framed a new rule in substitution of R. 6 to cure two defects. To R. 5 (d) the following caluse (d-1) is added where the suit appears tobe barred by any law'. Even before the amendment, Courts have held that under R. 5 (d), the petition should disclose a cause of action capable of enforcement in a Court of justice. Clause (d-1) is only a recognition of the pre-existing case law on the subject. Clauses (d) and (d-1) only indicate what has been the law all along viz., that a Court shall decide whether the petition discloses a subsisting cause of action. Madras R. 6, in express terms, casts a duty on a Court to give an opportunity to the petitioner to establish that the petition is not vitiated by any of the prohibitions mentioned in R. 5. It also gives an opportunity to the respondent to adduce rebutting evidence.

This rule, therefore, in terms gives a right to the petitioner to be heard before his petition is rejected under R. 5. But the enquiry contemplated by the amended rule is only in respect of the prohibitions in R. 5. It does not enlarge of add to the said probibitions. The right to adduce and give rebutting evidence must, therefore, be confined to the prohibitions in R. 5. To illustrate, where it is stated that a petitioner is not framed and presented in the manner prescribed by Rr. 2 and 3, it is open to the petitioner to prove that the petition is so framed and for the respondent to establish that it has not been framed in compliance with those rules. Where a question arises whether the petitioin disposed of property fradulently two months next before the presentation of the application, evidence can be adduced by both parties on the said question.

So too, when the questions is whether the applicant is a pauper or not, R. 6 allows that question to be decided on evidence. When the question is whether there was an agreement with reference to the subject-matter of the proposed suit, the rule enables the parties to establish that fact one way or other. But where the question is whether the allegations in the petition do not show a cause of action, obviously under Madras r. 6, no evidence can be adduced, for the prohibition in R. 5 is not that the petitioner has no cause of actioin, but whether the allegations do not show a cause of action. If the allegations disclose a cause of action no further evidence, would be admissible.

(7) So too, in the case of r. 5 (d-1) the evidence would be confined only to the question whether the suit appears to be barred by any law and not to the question whether the suit is barred by any law. The word 'appears' therefore has been designedly used to confine the scope of the enquiry only to the allegations in the petition. The Dictionary meaning of the word 'appear' is 'manifest' or 'seen'. The meaning of the word 'appearance' is 'outward look'. If it appears on the allegatioins in the petition that the suit is barred by any law, it will be rejected. The enquiry under R 6 must, therefore, be confined to the question whether on the allegations in the petition, the suit is barred by any law.

This interpretation is not inconsistent with the express provisions of Madras R. 6. If the evidence contemplated under R. 6 is intended to prove that the application is not subject to any of the prohibitions in r. 5, it can only only mean those prohibitions in respect of which evidence is necessary to establish that a partifular prohibition does not affect the petition. So read, Madras R. 6 gives full effect to the intention of the framers, for, as aforesaid, the prupose of the rule is only to give an opportunity to the parties to adduce evidence only on the prohibitions mentioned in R. 5.

(8) If, on the other hand, the construction now sought to be put upon Madras R. 6 by thelearned Counsel for the respondents is accepted, the distinction between a pauper petition and a suit disappears. Order 33 has been enacted to serve a treble purpose (1) to protect the bonafide claims of a pauper (2) to safeguard the interests of remove and (3) to protect the defendant's right not to be harassed. By enabling the Court to prevent persons with property from suing as paupers or third parties who acquire an interest in the calims of paupers from using the names of paupers and to dismiss petitions which do not 'ex facie' disclose a subsisting cause of action, the interests of bona fide paupers are safeguarded and defendants are protected from unnecessary harassment.

The procedure prescribed also protects revenue, for on eqnuiry if it is found that the petitioner is not a pauper, he will have to pay court-fees. On the other hand, if a Court shouldmake an enquiry and decide on the evidence, even before the suit is numbered, whether the petitioner has a subsisting cause of action, the entire suit should be heard before leave is granted. The words 'subsisting causes of action' will comprehend the entire dispute between the parties; the questions whether the plaintiff has a right to the relief claimed, whether the defendant has infringed that right and whether the suit claim is barred by limitation by 'res judicata' or any other statutory law would have to be decided on the evidence.

If the petition was dismissed on such an enquiry the petitioner would have got a trial without payment of court-fee. If the petition was allowed on such an enquiry the same questions should be decided again if the suit was numbered. There would be two trials on the same evidence and perhaps two conflicting decisions and the Court's time would unnecessarily be watned. This could not have been the intention of the framers of Madras R. 6 and we cannot attribute that intention to them.

(9) The learned Counsel for the respondent relied upon the judgment of Satyanarayana Rao J., in -- 'Mythili ammal v. Mahadeva Ayyar', AIR1948 Mad 433 (E), in support of his contention. There, the Subordinate judge of Cuddalore, refused to allow evidence on the question whether the suit was barred by limitation. The learned Judge held that the rule as amended by the Madras High Court gave a right to the parties to adduce evidence to establish whether the suit was barred by 'res judicata' or by limitation. The same learned Judge followed the earlier decision in -- 'Ponnuswamy goundan v. Alamel Ammal', AIR 1949 Mad 591 (F), and held that the Court was not justified in shutting out evidence by the opposite party to show that the suit was barred by limitation. We regret our liability to accept the view expressed by the learned judge.

We therefore, hold that Madras R. 6 was intended only to give an opportunity to the parties to adduce evidence before the petition is rejected on the ground of one or other of the prohibitions contained in R.5 and it does not enlarge the consent or scope of those prohibitions. In the present case, the allegations in the petition disclose a cause of action. It is clearly stated in the petition that the alienations of items 22 to 25 were made by the father during the lifetime of the first son. Necessary particulars also were given in support of the petitioner's plea that the alienations were made for purposes not binding on the petitioner. As the lower Court held that the petitioner is a pauper and that the allegations in the petition disclose a cause of action, the petitioner is entilted to have leave to sue in forma pauperis.

(10) In the result, the appealis allowed with costs.

(11) Appeal allowed,


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