Kalaiyarasan and others vs Gnanambal Achi

Nainar Sundaram, J.—This Letters Patent Appeal is directed against the judgment of the learned single Judge in C.M.A. No. 500 of 1983. That Civil Miscellaneous Appeal, in turn, is directed against the orders of the Subordinate Judge of Pattukottai, in O.P. No. 20 of 1981. The appellants herein are the Petitioners in the original petition. The respondents herein are the respondents in the original petition. We are referring to the parties in this judgment of ours as per their nomenclature in the original petition. The original petition was one presented by the Petitioners under Order 33 Rule 1 of the Code of Civil Procedure, hereinafter referred to as the Code, for permission to sue as indigent persons. The first court held that the Petitioners are indigent persons. However, the first court held that the proposed suit would be barred by limitation. In this view, the first court dismissed the original petition. There was no award of time to the Petitioners to pay the requisite Court-Fees. The petitioners Appealed in CMA. No. 500 of 1983 to this court. The learned single Judge of this Court dismissed it upholding the finding of the first court that the proposed suit would be barred by limitation. As stated above, this Letters Patent Appeal is directed against the Judgment of the learned single Judge in CMA. No. 500 of 1983.

Mr. K. Chandrasekaran, learned counsel for the petitioners, though initially ventured to make submissions with regard to the question as to whether the proposed suit would be barred by limitation, later confined his submissions to say that even if the application to sue as indigent person taken out by his clients is to be rejected, time ought to have been granted for payment of the court-fees, as enjoined by Order 33, Rule 15A of the Code, and he pleads for grant of time at least by us. This submission of the learned counsel for the Petitioners obliged us to order notice of motion. Mr. K. Jayaraman appears for the respondents. We heard submissions made by both the sides on the question as to whether we should grant time to the petitioners to pay the requisite Court fees on the proposed suit, as requested by the learned counsel for petitioners.

Order 33, Rule 15A of the Code introduced in 1976 certainly enables the Court, while rejecting the application to grant time to the applicant to pay the requisite court-fee within such time as may be fixed by the Court and upon payment of the cost of the application. Order 33, Rule 15A of the Code in terms reads as follows:

Nothing contained in rule, 5, rule 7 or rule 15 shall prevent a Court, while rejecting an application under rule 5 or refusing an application under rule 7, from granting time to the applicant to pay the requisite Court-fee within such time as may be fixed by the Court or extended by it from time to time; and upon such payment and on payment of the costs referred in sub-rule (2) of rule 15 within that time, the suit shall be deemed to have been instituted on the date on which the application for permission to sue as an indigent person was presented.

In the present case, the payment of costs would not arise because both the first court a learned single Judge of this court did not award costs. Then the question is as to whether, while dismissing the Letters Patent Appeal finding no merits in is, we should grant time to the petitioners to pay the requisite court for the proposed suit. Mr. K. Jayaraman learned Counsel for the respondents, submits that when there is a finding that the proposed suit would be barred by limitation, that must hold good as a final decision on that point and it would he futile to permit the payment of court-fees on the proposed suit, granting time therefore. As against this, Mr. K. Chandrasekaran, learned counsel for the petitioners, submits that the finding under Order 33, Rule 5 of the Code on the question as to whether the proposed suit would be barred by limitation is only for a limited purpose, namely, to find out as to whether the petitioners should be permitted to sue as indigent persons or not and that is not conclusive and final on that question and the question can be agitated by the respondents and adjudicated upon by the Court, even after the payment of the court fees and the suit is regularly entertained. We find that the submissions of the learned counsel for the petitioners deserves acceptance at our hands when we analyse the implications of the relevant provisions of the code. Order 33, Rule 5 of the Code sets forth the grounds on which the application to sue as an indigent person could be rejected. Clause (d-1) introduced in this State even in 1940, reads as follows:

Where the suit appears to be barred by any law, or,

Clause (f) was inserted by Central Act 104 of 1976 and it runs as follows:

Where the allegations made by the applicant in the application show that the suit would be barred by any law for the time being in force.

Order 33, Rule 15 of the Code itself contemplates that while a refusal to allow the applicant to sue as an indigent person, will be a bar for a subsequent application of like nature, the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such right after paying the costs of the application.

The expression appears occurring in clause (i-i) inserted in this State in Order 33 Rule 5 of the Code, clearly indicates that the enquiry as to the bar of limitation is a limited one and not a final one. Equally so, the language of clause (f) of Order 33, Rule 5 of the Code extracted above bears out that the enquiry and finding are only prima facie and not conclusive.

Clause (d) or Order 33, Rule 5 of the Code contemplates rejection of the application to sue as an indigent person, where the allegations do not show a cause of action. While dealing with that clause, as to what the Court does and the scope of it, have been explained by the Supreme Court in Vijaya Pratap Singh v. Bukh Haran Nath Singh 1964 I MLJ (SC) 79 to the following effect: But in ascertaining whether the Petition shows a cause of action, the Court does not enter upon a trial of the issues affecting the merits of the claim made by the Petitioner. It cannot take into consideration, the defences which the defendant may raise upon the merits; nor is the Court competent to make an elaborate enquiry into doubtful or complicated questions of law or fact. By the statute, the jurisdiction of the Court is restricted to ascertaining whether on the allegations a cause of action is shown. The jurisdiction does not extend to trial of issues which must fairly be left for decision at the hearing of the suit.

It must be noted that though the language of clause (d), clause (d-1) and clause (f) may be slightly different, yet their manner of operation and effect are one and the same Kunhamed Kutty J. in Lakshminarayanan v. Premier Bank of India 1968 I MLJ 333 dealt with clauses (d) and (d-1) of Order 33, Rule 5 of the Code and he opined as follows:

The Court, of course, is not justified in determining a doubtful question of limitation or hold an elaborate enquiry into doubtful and complicated question of law at this stage, by Order 33, rule 5, Civil Procedure Code.

In Rajkitmar Bhagwatsaran v. V.A.V. Rajah and others, a Bench of this Court consisting of Veeraswami, C.J. and Raghavan, J. while dealing with clause (d-1) of Order 33, Rule 5 of the Code, Held as follows:

Under Order 33, Rule 5d-1 of the CPC which was introduced as an amendment in Madras, the court should reject an application for permission to sue as a pauper, where the suit appears to be barred by any law. The Court is, therefore, entitled and in fact bound to find the facts necessary for deciding this question of limitation, not finally of course, but to form a prima facie view on that.

We are not exhaustive in referring to the pronouncement in this contention and we find that uniformly the pronouncements are to the above effect only. While deciding the application to sue as an indigent person, Court is not required to enter into consideration of complicated and doubtful questions of fact or of law. In view of the above position, we do not think we should take the finding, rendered on this question, as to whether the proposed suit would be barred by limitation, as a final one. The decision is only for the limited purpose of finding out as to whether the applicant could be permitted to sue as an indigent person. The Court does not render a final finding on this question at that stage. That question is still open for agitation if a regular suit is instituted as per Order 33, Rule 15 of the Code, or when on payment of Court-fees, the application gets converted into a regular suit as per Order 33, Rule 15A of the Code. In the said circumstances, we are prepared to countenance the plea put forth on behalf of the Petitioners for time to pay the requisite Court-fees on the proposed suit. Mr. K. Chandrasekar learned counsel for the petitioners explains to us that due to oversight there was an omission to put forth the alternative plea for payment of court-fees, before the first court and before the learned single Judge of this Court. We accept it.

We have not been persuaded to take a different view on the primary question that the proposed suit appears to be barred by limitation. Accordingly, while we dismiss this Letters Patent Appeal, taking note of the pleas of the learned counsel for the Petitioners, we grant the petitioners two months time from today to pay the requisite Court-Fees on the proposed suit, subject matter of O.P. No. 20 of 1981 on the file of the Subordinate Judge, Pattukottai We make no order as to costs.