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Anganna Goundan Alias Chinnasami Goundan Vs. Angamuthu Goundan and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Reported inAIR1956Mad271; (1956)1MLJ300
AppellantAnganna Goundan Alias Chinnasami Goundan
RespondentAngamuthu Goundan and anr.
Cases ReferredVenkatasubbiah v. Thirupathiah
Excerpt:
.....for permission to sue as a pauper if it is satisfied on any of the grounds mentioned in sub-clauses (a) and (e) of rule 5. we are not concerned in this civil revision petition with the sub-rules (a) to (d) or (e). subrules (a) to (c) and (e) have not undergone any change at the hands of the madras high court. the result of this new sub-rule is that if the court is satisfied that the suit is barred by any law, it can reject the application for permission to sue as a pauper after examining the applicant only without hearing the other side. that is at the time the applicant is examined if after a perusal of the allegations contained in the application the court sue motu is satisfied that the proposed suit is barred by any law then the application can be rejected. 4. the first stage..........to let in rebutting evidence to the contrary. if this stage is also successfully tided over by the pauper applicant, then his application should be registered as a suit. the extent of the power of the court to allow the parties to let in evidence regarding the prohibitions contained in sub-clause (d-1) of rule 5 of order 33 and the right of the opposite party to adduce such evidence has now to be considered.5. it is urged on behalf of the petitioner that at the second stage of the progress of the petition before its registration as a suit all that the court can address itself to without the help of the opposite party is to find out whether the applicant is a pauper or not and not whether the allegations did not show any cause of action or whether the suit appears to be barred by any law......
Judgment:

Govinda Menon, J.

1. O.P. No. 302 of 1951 on the file of the Court of the Subordinate Judge, Coimbatore was an application for leave to sue in forma pauperis to recover eleven items of properties filed by the petitioner herein on the ground that a certain decree and proceedings thereunder were void and not binding on him. The learned Subordinate Judge issued notice to the opposite party and the Government Pleader and directed that such evidence as the applicant may adduce to prove that the applicant is not subject to any of the prohibitions contained in Rule 5 of Order 33, Civil Procedure Code, would be received as also the evidence which may be adduced by the opposite parties to the contrary. The contention raised on behalf of the respondents was that the whole claim of the applicant has become barred by limitation. Against this contention the petitioner herein urged that question cannot be gone into at this stage as the only question before the Court at the stage before the application for leave to sue as a pauper is registered and numbered as a regular suit was whether the petitioner was a pauper and whether on the averments in the plaint the petitioner had a valid cause of action. The learned Subordinate Judge heard arguments on the point in controversy and holding that he was bound by the rulings of this Court to the effect that it was open to the respondent to adduce evidence regarding the plea of limitation directed the matter to be posted for letting in evidence. Aggrieved by that order the petitioner has come up in revision. It is necessary to refer in brief outline to the provisions of Order 33 as originally enacted in the Civil Procedure Code, 1908, as well as to the amendment made therein by the Madras High Court and find out what the object of the amendment is Rule I of Order 33, Civil Procedure Code, lays down that a suit may be instituted in forma pauperis by a person who is a pauper and there is a definition as to who is a pauper. Rule 2 deals with particulars that an application for permission to sue as a pauper should contain and that is followed by Rule 3 which lays down the necessary requisites for the presentation of the application. When the application is presented under Rule 3 the further procedure is, the Court is empowered, if it thinks fit, to examine the applicant or his agent when the applicant is allowed to appear by agent regarding the merits of the claim and the property of the applicant. This is intended to prevent frivolous applications at the instance of paupers who have recourse to Courts of law not to ventilate their legitimate grievances but to harass their opponents. The Court shall reject the application for permission to sue as a pauper if it is satisfied on any of the grounds mentioned in Sub-clauses (a) and (e) of Rule 5. We are not concerned in this Civil Revision Petition with the sub-rules (a) to (d) or (e). Subrules (a) to (c) and (e) have not undergone any change at the hands of the Madras High Court. They remain in the original form in which they have been enacted in the Civil Procedure Code of 1908. In the unamended Code, Sub-clause (d) ran as follows:

Where his allegations do not show a cause of action.

After amendment the word 'his' has been substituted by the word 'the' We are not concerned with that sub-clause also. Sub-clause (d-1) has been introduced by the Madras amendment which is to the following effect:

Where the suit appears to be barred by any law.

The result of this new sub-rule is that if the Court is satisfied that the suit is barred by any law, it can reject the application for permission to sue as a pauper after examining the applicant only without hearing the other side. That is at the time the applicant is examined if after a perusal of the allegations contained in the application the Court sue motu is satisfied that the proposed suit is barred by any law then the application can be rejected. This amendment was introduced in Madras in 1940. The stage at which the Court suo motu can reject the application has passed in the present case, for the learned Subordinate Judge has himself invoked the provisions of Rule 6 which as unamended is in the following terms:

Where the Court sees no reason to reject the application on any of the grounds stated in Rule 5, it shall fix a day (of which at least ten days' clear notice shall be given to the opposite party and the Government Pleader) 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.

As amended in Madras the Rule runs as follows:

Where the Court sees no reason to reject the application on any of the grounds stated in Rule 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 application is not subject to any of the prohibitions in Rule 5 and for hearing any evidence which may be adduced to the contrary.

2. The amendment, therefore, makes a vital difference in that whatever evidence the applicant was entitled to adduce was only in respect of his pauperism and the respondent may adduce evidence in disproof thereof under the unamended Rules; after the amendment the applicant is allowed to prove that the application is not subject to any of the prohibitions contained in Rule 5 and the opposite party can adduce evidence to the contrary. Rule 7 lays down that the Court shall fix a date to examine witnesses (if any) produced by either party and may examine the applicant or his agent, and shall make a memorandum of the substance of their evidence. Thereafter the Court shall also hear any argument which the parties may desire to offer on the question whether on the facts of the application and of the evidence (if any) taken by the Court, the applicant is or is not subject to any of the prohibitions specified in Rule 5, then the Court shall either allow or refuse to allow the applicant to sue as a pauper.

3. The combined effect of Rules 5, 6 and 7 is as follows:

4. The first stage is when if the Court is satisfied that the application to sue in forma pauperis is in proper form and is duly presented, then, if it thinks fit, it can examine the applicant or his agent on the merits of the claim and the property of the applicant. At this ex parte examination the opposite party cannot be present and he has no locus standi. This is more or less like the provision in Section 200 of the Code of Criminal Procedure where the Magistrate taking cognizance of an offence on complaint shall at once examine the complainant on oath and the substance of the examination shall be reduced to writing. Thereafter if he is not satisfied that there is a prima facie case the complaint can be rejected. Similarly a Judge receiving an application for leave to sue as a pauper is at liberty to reject the application after examination of the applicant and without hearing the other side in the first instance. If the Court sees no reason to reject the application on a prima facie perusal of it and examination of the applicant then it has to give notice to the Government Pleader and the opposite party and fix a date for receiving such evidence as the applicant may adduce to prove that his application is not subject to any of the prohibitions mentioned in Rule 5 and at that stage the opposite party is entitled to let in rebutting evidence to the contrary. If this stage is also successfully tided over by the pauper applicant, then his application should be registered as a suit. The extent of the power of the Court to allow the parties to let in evidence regarding the prohibitions contained in Sub-clause (d-1) of Rule 5 of Order 33 and the right of the opposite party to adduce such evidence has now to be considered.

5. It is urged on behalf of the petitioner that at the second stage of the progress of the petition before its registration as a suit all that the Court can address itself to without the help of the opposite party is to find out whether the applicant is a pauper or not and not whether the allegations did not show any cause of action or whether the suit appears to be barred by any law. What is argued is that at the stage before the registration of the application as a suit there is no pending suit on the file of the Court and as such the Court is prohibited from holding any enquiry regarding the bar by any law. Attention is invited to the use of different expressions in sub-clauses (d) and (d-1) of Rule 5 such as 'allegations' in Sub-clause (d) and 'suit' in sub Clause (d-1). Satyanarayana Rao, J. in Mythili Ammal v. Mahadeva Aiyar : AIR1948Mad433 , following the decision of Horwill, J., in C.R.P. No. 1055 of 1945 and Rajamannar, J., as he then was, in C.R.P. No. 10 of 1946 has laid down that in an application for leave to sue in forma pauperis it is open to the contesting respondents under Order 33, Rule 5, Sub-clause (d-1) and Rule 6, Civil Procedure Code, to show that the suit is barred either by res judicata or limitation and adduce evidence to that effect. Such being the case the Court would not be justified in shutting out evidence on behalf of the respondents on those legal matters. It was held that by the insertion of Sub-clause (d-1) and the complete transformation of Rule 6 the contesting respondent is entitled, as a matter of right, to let in evidence regarding such questions as limitation and res judicata or other legal prohibitions. The same learned Judge in a later case in Ponnuswami Goundar v. Alamelu Ammal : (1949)1MLJ61 , adhered to his earlier view and held that the Court would not be justified in shutting out evidence under Rule 6 which the respondent may wish to adduce to substantiate his plea. My attention was also invited to a recent decision of Subba Rao, C.J., of the Andhra High Court in Venkatasubbiah v. Thirupathiah (1955) Andhra W.R. 261, where it has been held that all that the contesting respondent is entitled to do under Rule 6 of Order 33, Civil Procedure Code, is to let in evidence as to whether the suit appears to be barred by law and not the question whether the suit is barred by any law. The use of the word ' appears ' has been designedly made to find out the scope of the enquiry only with regard to the allegations in the petition. At page 263, paragraph 6, the learned Judge observes as follows:

So too when the question is whether the applicant is a pauper or not, Rule 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 Rule 6 no evidence can be adduced for the prohibition in Rule 5 is not that the petitioner has no cause of action 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.

Reference was also made to the two judgments of Satyanarayana Rao, J., which we have already cited above but the Court expressed its dissent from the conclusions arrived at therein.

6. The question now before us is to which voice we should hearken. Decisions of other Courts such as Rai Chandan v. Chotalal I.L.R. (1932) Bom. 585 and Abdul Wakil v. Bibi Talimunnissa : AIR1950Pat517 relied upon by the petitioner can have no application because the Civil Procedure Code in both those States do not contain a provision similar to Sub-clause (d-1) of Rule 5. Equally inapplicable is the decision in Ratnam Pillai v. Pappa Pillai (1902) 13 M.L.J. 29 a which was decided at a time prior to the Civil Procedure Code of 1908. Therefore, no question as regards recording of evidence on the merits of the case at the stage anterior to the registration of the application as a suit arose. I may also refer to Order 43, Rule 1(n-n) which lays down that an appeal shall lie against an order under Rule 5 or Rule 7 of Order 33 rejecting an application for permission to sue as a pauper on the grounds specified in Clause (d) or Clause (d-1) of Rule 5. It is permissible to hold that an appeal would not have been provided for against the order rejecting the application for leave to sue in forma pauperis unless there were compelling reasons for changing the previous law. But it is urged that such a consideration would lead nowhere because even where the application is rejected without the presence of the opposite party and on a prima facie investigation of the case under Rule 5, an appeal is now allowed. In these circumstances we do not think that the fact of the existence of an appeal would in any way afford any guide for the solution of the problem. Since an appeal has been allowed against the rejection of an application for leave to sue as a pauper, whatever evidence is tendered has to be recorded in the manner laid down in Order 18, Rule 5, Civil Procedure Code and it is not open to the Court not to record any evidence or take only a summary of it. What then is the meaning of the word, prohibition, contained in Rule 6. Can it be said that the absence of any cause of action on the allegations contained in the application or the apparent bar of the suit on account of any law be said to be a prohibition? It is argued that the other sub-clauses under Rule 5, constitute prohibitions whereas Sub-clause (d) and (d-1) do not fit in with that category. I am afraid that argument cannot be accepted. It is difficult to say that Sub-clause (b) which is to the effect ' where the applicant is not a pauper ' can be said to be a prohibition or Sub-clause (c) where he has, within two months next before the presentation of the application disposed of any property fraudulently... can also be taken as a prohibition. Prohibition should be one for which there is an embargo. It connotes a directive not to do a certain thing, and we are of the opinion that all the sub-clauses contained in Rule 5 enact prohibitions. With due respect to the learned Judges of the Andhra High Court it seems to us that there is no warrant for restricting evidence to be let in only in regard to allegations in the plaint as appearing to be barred by any law. If the allegations in the petition alone are to be taken it is difficult to conceive what evidence the opposite party can give, when Rule 6 definitely allows him the right to adduce evidence to the contrary it does not mean that the evidence should be restricted to the allegations contained in the application alone. We have had access to the proceedings of the Rules Committee of the Madras High Court which while recommending the present amendment, in its letter to the High Court proposing; transformation of Rule 6 observed as follows:

The Committee are of the opinion that the safeguard provided in Rule 5 will not be effective if the enquiry were to proceed merely on the allegations in the plaint. Therefore, they have made provision by appropriate amendment to Rule 6 for enabling the defendant to assist the Court in determining the existence or otherwise of the prohibitions in Rule 5. The Committee are of opinion that these two amendments taken together provide a reasonable check against the temptation to abuse the right to sue as a pauper by launching speculative suits.

7. From the above extract it is absolutely clear that the High Court in framing the rule accepting the proposal of the Rule Committee did not intend that the evidence to be let in should be restricted or confined to the mere allegations contained in the plaint. Practical difficulties may arise in the application of Rule 6 if the construction put upon it by the Andhra High Court is to be accepted. A cleverly worded application by inserting an obviously wrong date to save the bar of limitation can easily circumvent the provisions of the rule if evidence can be let in only on the allegations in the plaint. We feel, no doubt, whatever, that the intendment of the rule was not to that effect. The learned Judges of the Andhra High Court while dissenting from the two decisions of Satyanarayana Rao, J., which in turn followed the two earlier unreported decisions, have given no reasons which we could accept for dissenting from these decisions. We are therefore, of opinion that it is open to the respondent to let in evidence to show that the suit appears to be barred by any law. Stress was laid in the decision in Venkatasubbiah v. Thirupathiah 1955 . W.R. 261 on the word 'appears' as contradistinguished from the word ' is ' and it is mainly on account of the use of that word that it was held that the evidence should be restricted only to the allegations in the plaint. No doubt the word ' appear ' does not connote any quietus or finality but in our view it was designedly used to make a distinction between the final disposal of the suit and a decision at the stage before it is registered as a suit. We are, therefore, of opinion that the decision of the lower Court is correct. This Civil Revision Petition is dismissed with costs.


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