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Kathari Ramachandra Raju (Died) and ors. Vs. Dandu Venkiah and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1927Mad441; 101Ind.Cas.18; (1927)52MLJ330
AppellantKathari Ramachandra Raju (Died) and ors.
RespondentDandu Venkiah and ors.
Cases ReferredMahadeo Sahai v. Secretary of State
Excerpt:
- - the non-existence of a cause of action should appear clearly on the fact of the application itself, which alone would justify the court in rejecting the application......by the petitioners whose application for leave to sue in forma pauperis has been rejected by the district munsif under order 33, rule 5(d) of the c.c.p.2.a preliminary objection has been taken on behalf of the respondents that no revision petition lies under section 115 of the c.p.c. against such an order. the wording of section 115 of the c.p.c. is in my opinion comprehensive enough to cover a case of this kind, and if authority is needed, it is clear that there have been a number of cases decided by this court in revision which show that such petitions have been entertained as sustainable under section 115 without any demur. the full bench decision of this court in rathnam pillai v. pappa pillai (1902) 13 mlj 292 (fb). is a clear authority showing that the high court interfered with.....
Judgment:

Sundaram Chetty, J.

1. This is a civil revision petition filed by the petitioners whose application for leave to sue in forma pauperis has been rejected by the District Munsif under Order 33, Rule 5(d) of the C.C.P.

2.A preliminary objection has been taken on behalf of the respondents that no revision petition lies under Section 115 of the C.P.C. against such an order. The wording of Section 115 of the C.P.C. is in my opinion comprehensive enough to cover a case of this kind, and if authority is needed, it is clear that there have been a number of cases decided by this Court in revision which show that such petitions have been entertained as sustainable under Section 115 without any demur. The Full Bench decision of this Court in Rathnam Pillai v. Pappa Pillai (1902) 13 MLJ 292 (FB). is a clear authority showing that the High Court interfered with a similar order passed by the Lower Court in revision, when it found that the order showed an illegal exercise of jurisdiction by the Lower Court. To the same effect are the decisions reported in Govindasami Pillai v. Municipal Council, Kumbakonam 34 MLJ 399. and Polimati Mungadu v. Nalla Bapadu (1923) 18 LW 53. At any rate the trend of decisions of this High Court shows that a revision petition does lie against an order of the Lower Court rejecting an application of this kind. Reference was made by the respondents' vakil to the decision in Mahadeo Sahai v. Secretary of State for India in Council which follows a previous Full Bench decision of that High Court. A different view seems to have Been entertained by that Court, but with due respect I am unable to follow the view adopted therein, in consideration of the clear decisions of this High Court and also the long course of practice adopted here.

3. The next question to be considered is whether the order of the District Munsif rejecting the application is one passed illegally in the exercise of his jurisdiction as contended on the petitioners side. In this case it is found by the District Munsif himself that the pauperism of the petitioners has been made out. There is no ground to dismiss the application under Clause (b) of Rule 5 of Order 33., C.P.C. Clause (d) gives jurisdiction to the Court to reject an application where the allegations made in that application do not show a cause of action. The scope of this clause has been considered in more than one decision of this High Court. The non-existence of a cause of action should appear clearly on the fact of the application itself, which alone would justify the Court in rejecting the application. The Court would be acting without jurisdiction if it should travel beyond the four corners of the application and take into consideration matters not stated therein or consider any document or other evidence in order to determine whether there is a cause of action or not. Such a course would be legitimate in the actual trial of the suit on the merits. This is the view taken in all the three decisions of this High Court referred to above. In the present case, what the District Munsif has done is to take into consideration an agreement referred to in the plaint but not filed before him and to surmise upon its admissibility in evidence without having before him the actual document itself for a proper construction of its terms and to hold that the document would probably be inadmissible in evidence and therefore the plaintiffs would have no cause of action. It is obvious that the way in which the District Munsif has dealt with this application is unwarranted by the Code and I should think on a consideration of the allegations set forth in the plaint that the agreement dated the 21st of December 1920 is the basis for the cause of action in this suit. The validity or otherwise of that agreement has to be determined later on in due course. The present case is not one covered by Clause (d) of Rule 5 of Order 33 of the Code of Civil Procedure.

4. In the result, the order of the District Munsif is set aside and the application is ordered to be numbered and registered as a suit in forma pauperis. The petitioners' cost of this petition should be paid by the respondents.


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