1. Upon an application to sue in forma pauperis the District Munsif decided that the claim, which was one for return of the balance of the sum deposited by the applicant upon a contract with the Kumbakonum Municipality for the collection of rents of stalls in the vegetable market, was time barred. Upon this ground alone he dismissed the application without hearing evidence and deciding the question of fact whether the applicant was or was not possessed of sufficient means to pay the court-fees on his suit. Two questions have been raised.
1. Whether the District Munsif acted without jurisdiction in dismissing the application on this ground.
2. Whether he was wrong in treating the claim as out of time, Order 33, Rule 5(d) of the Code of Civil Procedure declares that a court shall reject an application for permission to sue as pauper where the applicant's allegations do not show a cause of action, (in the Code of 1882 it was a right to sue in such court) and Rule 7(2) authorises the court to hear arguments on the question whether on the face of the application it is prohibited by Rule 5.
2. There is ample authority both under the old Code and the present Code for the view that 'cause of action' in Rule 5(d) signifies a subsisting cause of action and that courts should dismiss applications if the cause of action is incapable of enforcement under the rules of limitation. Vide Vijendra Tirtha Swami v. Sudhindra Thirtha Swami I.L.R. (1895) M. 197, Amirtham v. Ahoar Manihham I.L.R. (1908) M. 37 Subramania Chetty v. Malayandi Chetty (1914) I.L.W. 668 and the commentary to this rule in Woodroffe and Ameer Ali's Civil Procedure Code of 1908.
3. But it is argued that Vijendra Tirtha Swami v. Sudhindra Thirtha Swami I.L.R. (1895) M. 197 was overruled in the Full Bench decision in Bathnam Pillai v. Pappa PUlai : (1903)13MLJ292 and that the two. later cases were decisions of single Judges whose attention was not directed to this Full Bench decision of their own court which put a different interpretation on the language of the Code of Civil Procedure.
4. This conflict of judicial opinion appears to have arisen principally from the use by different Judges of the words 'good subsisting cause of action ' in a different sense.
5. If it means a good prima facie case on the merits, it is reasonable to say that a court would not be justified by anything in Order 33, Rule 5 and 7 in prejudging the merits of the claim upon a summary investigation in the course of an enquiry into the applicant's pauperism. As stated in Rathanam Pillai v. Pappa Pillai (1903) 13 M.L.J. 292 : : (1903)13MLJ292 'a decision of the case on the merits at that stage, in practice, would be likely to lead to waste of the court's time and to confusion and irregularity of procedure.'
6. In this connection I find it impossible to reconcile Ranganayaka Ammal v. Venkatachellapathi Naidu I.L.R. (1881) M. 323 and Rathanam Pillai v. Pappa Pillai : (1903)13MLJ292 with Kamrakh Nath v. Sundar Nath I.L.R. (1898) A. 299 which purported to follow Chaterpat Singh v. Raja Ram I.L.R. (1885) A. 661 (a case of a claim barred by limitation) but went further and applied the same principles to a case without obvious merits.
7. If however the words 'good subsisting cause of action 'are used to mean a valid subsisting cause of action, i.e., one not barred by the laws of jurisdiction or limitation, then I think that the language of Order 33, Rule5 fully warrants a court rejecting an application which does not satisfy these requirements.
8. The cases in Mangaleshri Illath Krishnan Nambudri v. Kesavan Nambudri (1913) M.W.N 38 Kanakammal v. Panchapakesa : AIR1914Mad256 and Devupalli Amanna v. Pediradla Narayanasami Naidu (1915) 30 I.C. 689 are not exactly in point, but tend to support the distinction I have drawn between causes of action that are not prima facie good on their merits and those that are subject to the prohibitions specified in Order 33, Rule 5.
9. The decision in Venkoba Row v. Nataraja Chetty (1909) 6 M.L.T. 359 dealt with a question upon which I do not feel called upon to pronounce an opinion viz., whether evidence could be recorded for deciding on a point of limitation during the enquiry into an applicant's pauperism.
10. In the present case no evidence was admitted and the District Munsif held that the suit was barred by limitation on the statements in the plaint. Under Order 7, Rule 11 a court could do as much as this even on a duly stamped plaint. On the point of limitation I think that the plaintiff had 3 years to recover his deposit or at least the balance due to him after crediting a portion towards the monthly instalments of rent due from him, from the date of his contract with the Municipality falling through. The article applicable to the facts alleged in the plaint is Article 97, of the Limitation Act which allows 3 years from the date of the failure.
11. The Privy Council in Bassu Kuar v. Dhum Singh I.L.R. (1888) A. 47 and this Court in Appavu Odayan v. District Board of Tanjore (1907) 17 M.L.J. 298 applied this article to cases where money was paid upon an existing consideration which afterwards failed.
12. It is clear from Balakrishnadu v. Narayanaswami Chetty I.L.R. (1912) M. 175 that Article 145 which allows 30 years for recovering deposits relates to deposit of goods and. not of money. It is true that the Calcutta High Court in Upendra Lal Muhhopadhya v. Collector of Rajshahye I.L.R. (1885) C. 113 considered that a plaintiff suing for recovery of a deposit given as security for personal services would have 6 years under Article 120 to bring his suit, and this was followed in Sakhawat Ali v. Baldeo (1910) 8 I.C. 370 by a single Judge of the Oudh Judicial Commissioner's Court and extended to a deposit of money as security for payment of rent under a contract of lease. But in an earlier decision of the Calcutta High Court Johuri Mahton v. Thakoor Nath Lukee I.L.R. (1880) C. 830 it was held that the period of limitation for return of money deposited as security for the due performance of a lease was only 3 years under Article 62, and I feel no doubt that recourse should not be had to Article 120 unless other articles are clearly shown to be inapplicable. As the petitioner in the present case took no steps till 1915 to recover his deposit after getting notice from the Municipality in June 1911 that his lease was cancelled, his claim was rightly treated as time-barred. 1 dismiss this petition with costs.