In Re: K. Annamalai Chettiar and Others

Ramaswami, J.—On an Original Petition to file a suit in the pauper form the only objection raised by the contesting respondents defendants was that the suit was barred by limitation. The learned Subordinate Judge held an enquiry and came to the following conclusion:

P.W.1 examined. Ex. B. 1 marked. P. W. 1 proves that he has no properties and that he is a pauper. There is no evidence contra. It is argued that the claim, if any, is barred. Without more elaborate evidence on this point one cannot decide the question of limitation at this stage. The plaint will be registered as suit.

This Civil Revision Petition is sought to be filed by the defeated respondents.

Order 33, R. 5, C. P. C. has been amended by this High Court by adding two Cls. (d and (d-1) of which we are concerned here only with Cl. (d-1) viz.,

where the suit appears to be barred by any law e.g., by limitation the Court shall reject an application for permission to sue as a pauper.

This has been added in Madras by R. O. C. No. 2482 of 1936 B-1.

Two points are involved for consideration viz., the jurisdiction of the Court to enquire into the question of limitation at the stage of pauper application and the scope of that enquiry.

In regard to the first point there can be no doubt that the Court has jurisdiction to enquire in the pauper application stage itself into the question of limitation, allowing evidence to be adduced by both sides. The Amendment is clear and the point also is concluded by authority in Mythili v. Mahadeva Ayyar 61 L. W. 436. (1) and Ponnuswami Goundan v. Alamelammal 68 L. W. 116. (2). Satyanarayana Rao, J. held that under O. 33, Rr. 5 and 6, C. P. C., as amended in Madras, the Court is. not justified in shutting out evidence which the petitioners wanted to adduce in the lower Court to show that the suit for which leave to sue in the pauper form is sought is barred by limitation.

The scope of the enquiry, however, is a matter within the discretion of the trial judge and in exercising this discretion it must not be exercised arbitrarily or capriciously and must be guided by sound judicial principles. The word "appears" deliberately used in Cl. (d-1) as well as the case-law on the subject show that at that stage the Court should not embark upon the consideration of complicated or doubtful questions of limitation as may arise on the allegation of the respondent or decide affecting the merits, as questions of limitation are seldom pure questions of law but more often than not mixed questions of fact and law that more properly and fairly can be determined at the hearing of the suit. The enquiry at that stage should be limited within the ambit of the word "appears" in Cl. (d-1) as amended by this Court. "Appears" meaning "be visible", "be manifest", connotes something more than what is en-face patent and something less than discovery after deep deviling into the evidence in the case.(1) it is something betwixt and between the extremes and the line of demarcation will be dependent upon the circumstances of each case and the exercise of sound judicial discretion, In exercising that judicial discretion it has to be borne in mind that the object of the Order and Rule is to prevent our Courts from being flooded with palpably worthless, obviously time-barred and manifestly untenable suits by paupers uninhibited by the sobering responsibility induced by payment of heavy court-fees. But the law as Lord Sankey said is a like a great rock upon which a man may set his feet and be safe while the inevitable inequalities of private life are not so dangerous in a country where every citizen knows that in the law Courts at any rate he can get justice. Therefore, when the learned Subordinate Judge has come to the conclusion in this case, that is practically to the effect, that at that stage it does not appear to him that the suit is barred by limitation, he has properly relegated the enquiry to the stage of the trial of the suit.

I therefore see no reason to admit this Revision Petition and only direct, in view of the importance of the question of limitation strenuously contended for by the defendants and denied by the plaintiff, that it should be taken up as the first issue in the suit itself and disposed of without practicable delay. Subject to the above observations this Civil Revision Petition is dismissed. I need not add that in conclusion I express no opinion on the merit of the point of limitation raised and in fact this ought to be gone into at the trial and as a preliminary issue.