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Bhimo Gantayat Vs. Trinath Gantayat and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 310 of 1961
Judge
Reported inAIR1963Ori223
ActsCode of Civil Procedure (CPC) , 1908 - Order 33, Rule 5
AppellantBhimo Gantayat
RespondentTrinath Gantayat and anr.
Appellant AdvocateR.N. Misra, Adv.
Respondent AdvocateH.G. Panda, Adv.
DispositionPetition dismissed
Cases ReferredSupreme Court Vijai Pratap Singh v. Dukb Haran Nath Singh
Excerpt:
.....scope of enquiry in an application for leave to sue as pauper under order 33, rule 5 of 7 has been clearly laid down in a recent decision of the supreme court vijai pratap singh v. ' in the said suit the trial court held that the plaintiff (petitioner herein) had failed to establish that he was the son of borojo gantayat and accordingly decided the said issue against him. in the present case the judgments in the earlier litigation, finding that the plaintiffs had failed to establish that he is the son of late borojo-gantavat as claimed, have been specifically mentioned in paragraphs 6 and 7 of the plaint quoted above......by the petitioner herein against the defendants for maintenance out of the estate of one late borojo gantayat, arrears of maintenance and other incidental reliefs. the said application for leave to sue as pauper was rejected by the trial court on the grounds that the petitioner omitted to set out the whole assets with good faith; that there was no cause of action for the suit in that by reason of previous litigation the present suit is not maintainable as the decision of the earlier suit will operate as res judicata under section 11 civil procedure code and further that the proposed suit is barred by limitation.2. the scope of enquiry in an application for leave to sue as pauper under order 33, rule 5 of 7 has been clearly laid down in a recent decision of the supreme court vijai.....
Judgment:
ORDER

S. Barman, J.

1. The proceeding out of which this Civil revision arises is an application for leave to sue as pauper filed by the petitioner herein against the defendants for maintenance out of the estate of one late Borojo Gantayat, arrears of maintenance and other incidental reliefs. The said application for leave to sue as pauper was rejected by the trial court on the grounds that the petitioner omitted to set out the whole assets with good faith; that there was no cause of action for the suit in that by reason of previous litigation the present suit is not maintainable as the decision of the earlier suit will operate as res judicata under Section 11 Civil Procedure Code and further that the proposed suit is barred by limitation.

2. The scope of enquiry in an application for leave to sue as pauper under Order 33, Rule 5 of 7 has been clearly laid down in a recent decision of the Supreme Court Vijai Pratap Singh v. Dukb Haran Nath Singh, AIR 1962 SC 941. The Court is enjoined to reject a petition where the prohibitions mentioned in Clauses (a) to (e) of Rule 8 exist. Even if the petition is not so rejected at the bearing of the petition, if the Court is satis-fied as to existence of these prohibitions it maybe dismissed under Rule 7. By the express terms of Rule 5(d) the Court is concerned to ascertain whether the allegations made in the petition show a cause of action. The Court has not to see whether the claim made by the petitioner is likely to succeed : it has merely to satisfy itself that the allegations made in the petition, if accepted as true, would entitle the petitioner to the relief he claims. If accepting the allegations as true no case is made out for granting relief no cause of action would be shown and the petition must be rejected. But in ascertaining whether the petition shows a cause of action the Court does not enter upon a trial of the issues affecting the merits of the claim made by the petitioner. It cannot take into consideration the defence which the defendant may raise upon the merits; nor is the Court competent to make an elaborate enquiry into doubtful or com-plicated questions of law or fact. If the allegations in the petition, prima facie, show a causa of action, the Court cannot embark upon an enquiry whether the allegations are true in fact, or whether the petitioner will succeed in the claim made by him. By the statute, the jurisdiction of the Court is restricted to ascertaining whether on the allegations a cause of action is shown; the jurisdiction does not extend to trial of issues which must fairly be left for decision at the hearing of the suit.

3. In the present case, paragraphs 4, 5, 6 and 7 of the plaint in the proposed suit for which leave to sue as pauper was filed by the petitioner are these;

'4. The Borojo Gantayat and the defendant No. 2 lived openly and renouncely (sic) to all men in the whole world at large as man and wife and the plaintiff who was an outcome of the said cohabitation beween Barojo and defendant 2, was brought up by the said Borojo and was even got married by him before his death.

5. That Moni was always in the exclusive keeping of the said Borojo and on no occasion had anybody else been able to establish any co-tact with her.

6. That the plaintiff instituted a suit in the Court of the Agency Subordinate Judge at Jeypore in Title Suit No. 7 of 1948 seeking to recover the properties on the allegation that he was entitled to succeed to the same on the death of Borojo Gantayat and ,in the alternative for the relief of partition by metes and bounds claiming half share in the said properties along with mesne profits.

7. That the said suit was dismissed by the learned Agency Subordinate Judge, and the Hon'ble High Court of Judicature, Orissa, Cuttack in First appeal No. 14 of 1956 disposed of on August 17, 1960 confirmed the same.'

The basis of the petitioner's claim in the proposed suit for maintenance is his alleged claim as the son of late Borojo Gantayat. In the previous litigation in Title Suit No. 7 of 1948 one of the issues was :

'Is the plaintiff son of Borojo Gantayat?' In the said suit the trial Court held that the plaintiff (petitioner herein) had failed to establish that he was the son of Borojo Gantayat and accordingly decided the said issue against him. In appeal be-fore this Court (F. appeal No. 14 of 1956) this Court confirmed the finding of the trial Court and expressed the view that the evidence adduced on behalf of the plaintiff is far from satisfactory and cannot be relied upon for coming to a conclusion that the plaintiff is the illegitimate son of Borojo as Claimed by the plaintiff and accordingly dismissed the plaintiff's appeal. It is these judgments of the trial Court in Title suit No. 7 of 1948 and of the High Court in First appeal No. 14 of 1956 which have been referred to in paragraphs 6 and 7 of the plaint as quoted above. The effect of these judgments in the previous litigation is that : the plaintiff has no locus standi and thus has no cause of action for a claim against the estate of Borojo Gantayat for maintenance as alleged.

4. If the Court is to dismiss an application to sue in forma pauperts on the ground that there is no subsisting cause of action, it must be able to draw that conclusion from the allegations in the plaint itself. It is fundamental that the documents referred to in the plaint are to be treated as part of the plaint itself. In the present case the judgments in the earlier litigation, finding that The plaintiffs had failed to establish that he is the son of late Borojo-Gantavat as claimed, have been specifically mentioned in paragraphs 6 and 7 of the plaint quoted above. Relying on the principles hid down by their Lordships of the Supreme Court, it is permissible to read with the plaint the documents referred to in the plaint. Of course the Court should not go beyond the plaint and those documents specifically mentioned in the plaint. It cannot be said that to look into the documents pointedly referred to in the plaint amounts to going beyond the plaint. Accepting the allegations in the petition for leave to sue as pauper read with the judgments in the previous litigation specifically mentioned in the plaint itself as true, no case is made put for granting relief, no subsisting cause of action is shown and the petition is to be rejected. The allegations in the petition for leave to sue as pauper prima facie show that the present suit is barred by res judi-cata by reason of the decisions in the previous litigation between the parties as aforesaid. In taking this view it cannot be said that the Court below embarked upon an enquiry whether the allegations are true in fact or whether the petitioner will succeed in the claim made by him.

5. In this view of the case the petitioner's application for leave to sue as pauper was rightly rejected by the trial Court.

6. The learned trial Court was however notjustified in making the order in the last paragraphof his order that the plaint cannot be registeredas a suit as it is not maintainable and barred bylimitation. The said portion of the order is setaside. It is open to the plaintiff to file a suitafter payment of proper Court-fee and the orderof the learned trial Court is to be modified accordingly. With the aforesaid modification theCivil Revision is dismissed. No order as to costsof this civil revision.


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