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Kanagammal and anr. Vs. Panchapakesa Odayar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1914Mad256; (1914)26MLJ343
AppellantKanagammal and anr.
RespondentPanchapakesa Odayar and anr.
Cases ReferredIn Nilamadhab Mitter v. Jotindra Nath Mitter
Excerpt:
- .....partition. if so, the 2nd plaintiff has undoubtedly a cause of action (if the allegations in the pauper application are true) to sue for maintenance; if again the 1st plaintiff is the permanent concubine of the 1st defendant's deceased brother, her claim for maintenance cannot be said to be groundless. as said in vijendra tirtha swami v. sudhindra tirtha swami i.l.r. (1895) m. 197, 'where there is a ground for reasonable doubt, leave should be granted and should not be refused.' in the full bench, case, rathanam pillai v. pappa pillai (1902) 13 m.l.j. 292 it was held that evidence on the merits of the case of the, pauper applicant cannot be gone into in the preliminary investigation of the question whether leave ought to be granted or not and k. ranganayaka animal v. k......
Judgment:

Sadasiva Aiyar, J.

1. Plaintiffs are the petitioners. The 1st plaintiff is the mother of the minor 2nd plaintiff. Their application to the learned Subordinate Judge of Mayavaram to be allowed to sue in forma pauperis to obtain reliefs of future maintenance and recovery of arrears of maintenance was rejected by the learned Subordinate Judge. The total value of the reliefs claimed by them was Rs. 11,700. The first plaintiff gave the value of the properties belonging to her as Rs. 327 and the value of the properties belonging to the minor 2nd plaintiff as nil. The Rs. 327 worth of moveables was of course not sufficient to pay the Court fee stamps on the reliefs worth Rs. 11,700, the Court fee required being Rs. 535. The Lower Court did not go into the question whether the plaintiff's pauperism was established but it rejected the application on the ground that the requirements of Order 33, Rule 5, had not been complied with by the petitioners. That Rule 5 says that the Court should reject an application for permission to sue as a pauper (a) where the application is not framed and presented in the manner prescribed by Rules 2 and 3, (6) where the applicant is not a pauper, (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 a pauper, (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. It is difficult to gather from the learned Subordinate Judge's order what particular requirements of Rule 5 Order 33 had not been complied with by the petitioners. It is admitted that the questions (a), (c) and (e) arising under Rule 5 were not considered or relied on by the Subordinate Judge and that those clauses need not be considered in dealing with the petitioners' application. We have only to consider Clauses (a) and (d).

2. As regards Clause (d), unless the petitioners' allegations in their petition do not show 'a cause of action' (that is, any cause of action), the Court cannot reject the application. The Subordinate Judge does not say in his order that the allegations do not show any cause of action. He only says that it is doubtful whether the 2nd plaintiff can be awarded maintenance if he was entitled to sue his putative father's undivided brother (1st defendant) for partition of the undivided family properties of his said father and of the 1st defendant.

3. It is the case of the defendants themselves that the 2nd plaintiff has no such right to sue for partition. If so, the 2nd plaintiff has undoubtedly a cause of action (if the allegations in the pauper application are true) to sue for maintenance; If again the 1st plaintiff is the permanent concubine of the 1st defendant's deceased brother, her claim for maintenance cannot be said to be groundless. As said in Vijendra Tirtha Swami v. Sudhindra Tirtha Swami I.L.R. (1895) M. 197, 'where there is a ground for reasonable doubt, leave should be granted and should not be refused.' In the Full Bench, Case, Rathanam Pillai v. Pappa Pillai (1902) 13 M.L.J. 292 it was held that evidence on the merits of the case of the, pauper applicant cannot be gone into in the preliminary investigation of the question whether leave ought to be granted or not and K. Ranganayaka Animal v. K. Venkatachellapathi Naidu I.L.R. (1881) M. 323 was followed. It may be that the plaintiffs when they claimed maintenance also on behalf of the two daughters of the 1st plaintiff, have added a claim which is not supported by any cause of action vesting in the plaintiffs but Clause (d) of Rule 5 does not justify the dismissal of an application simply because some of the several causes of action mentioned by the plaintiffs, are not shown to vest in themselves and only the others vest in them. It is only where the plaintiffs' allegations do not show any cause of action as regards any of the reliefs that the application could be rejected under that Rule.

4. We have thus left only to consider whether the application could be rejected under Clause (a) of Rule 5. That clause says that if the application is not framed and presented in the manner prescribed by Rules 2 and 3 it shall be rejected. Rule 2 says that the application shall contain the particulars required in regard to plaints in suits and a schedule of any moveable or immoveable property possessed by the applicant, with the estimated value thereof and that it shall be signed and verified in the manner prescribed for the signing and verification of pleadings. As regards the particulars required by plaints in suits, we have to turn to Order 7, Rule 1 and those particulars are contained in clauses a to i of Order 7, Rule 1. I am unable to find any defect in the application either by omission of any of the particulars required by Order 7, Rule 1, by the omission of a schedule of property belonging to the applicant or by the omission of the signature and verification of the applicant. Then as regards Rule 3 of Order 33, that rule requires the presentation of the application by the pauper herself or by an authorised agent and there is no defect alleged in regard to this particular either. The learned Subordinate Judge seems to think that because the 1st plaintiff's cause of action for her maintenance claim is different from the 2nd plaintiff's cause of action for his maintenance claim, therefore the application is not framed in the manner prescribed by Order 33, Rule 2. I am unable to agree with him. In the first place, Order 7, Rule 1 which relates to the particulars to be contained in the plaint and which is incorporated in Order 33, Rule 2 does not deal with the question of mistakes of law or fact or mistakes of non-joinder or misjoinder found in the plaint. It only deals with the question whether The particulars (a) to (i) mentioned in that Order are found in the plaint. If they are so found, the application is framed in the manner prescribed by Order 33, Rule 2 and that is all what Order 33, Rule 2 requires. In the second place, I am unable to see that there is any misjoinder of causes of action so far as the claims of plaintiffs 1 to 2 to be awarded maintenance are concerned. Order 1, Rule 1 allows several plaintiffs to bring a single suit though the causes of action of the several plaintiffs are different, provided that the transaction out of which their separate claims arise is one and that any common question of law or fact exists in respect of the separate claims. In Nilamadhab Mitter v. Jotindra Nath Mitter 17 C.W.N. 341 it was held that a husband and a wife and their son could all join in a single suit to recover the maintenance due to them separately, the words of Order 1, Rule 1, C.P.C. being relied on for that conclusion.

5. Lastly it is urged that as the plaintiffs claim maintenance on account of the 1st plaintiff's daughters (2nd plaintiff's sisters) also and as the plaintiffs have no cause of action vesting in themselves to sue for such maintenance, the pauper application which includes such an unsustainable claim must be rejected. As I said before Order 33, Rule 5, Clause (a) does not allow the rejection of the application on the ground that patently unsustainable claims have been joined in the application to sustainable claims. It is only if the application is not framed and presented in the manner prescribed by Rules 2 and 3 that the application can be rejected. But it is further contended (a) that the Court has not got the power to direct the application to be amended by striking out that portion of the prayer which claims the unsustainable reliefs, (b) that if the Court has no power to order the application to be so amended, it would be unable to find but the separate value of the sustainable reliefs from the total value of Rs. 11,700 given in the application for both the sustainable and the unsustainable reliefs, and (c) that the Court would again be unable in consequence to find out whether the Rs. 327 which is the value of the plaintiffs' properties could cover the court fees due on the sustainable reliefs and hence whether the application to sue as pauper could be granted as regards even the sustainable reliefs. On these contentions, it is argued that the proper course was taken by the Court under these circumstances when it wholly rejected the application.

6. As regards the argument under the heading (a) I do not agree with the contention that the Court has not got the power to order the amendment of the application if it is improperly framed through misjoinder of causes of action and of reliefs. No doubt, Order 6, Rule 17 relates only to the power of the Court to allow parties to alter and amend pleadings ; and the word 'pleadings' means only plaints and written statements (See Order 6, Rule 1); and an application to sue as a pauper becomes a plaint and therefore a pleading only after it is granted (See Order 33, Rule 8). But the power of a court to direct a pauper applicant to amend his pauper application is one of the inherent powers of the court and it does not require any specific provision of the Civil Procedure Code to enable the court to exercise this power. I am also of opinion that Section 141 C.P.C. which makes 'the procedure ' provided in regard to suits applicable to other ' proceedings ' also, governs proceedings connected with pauper applications and thus enables the court to apply the provisions of Order 6, Rule 17 to such proceedings.

7. In the result, I hold that the learned Subordinate Judge acted illegally and with material' irregularity in rejecting the pauper application on the grounds set out by him. I set aside his order and remand the application for proper disposal with reference to the above remarks. I shall make no order as to costs in this Court. Costs in the Lower Court will abide.


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