Manikka N. Perumal Aiyar vs Srinivasa Aiyangar

Horwill, J.—This is a revision petition against the order of the District Munsif of Manamadura dismissing an application for leave to sue in

forma pauperis on the ground that the application did not disclose any cause of action.

It is conceded that the application itself did disclose; cause of action; but the learned District Munsif, after seeing the counter of the defendant

and looking into certain document produced by him, held that the suit was barred by res judicata. The question that arises in this petition is whether

the Court was right in considering the counter and documents and dismissing the application on that account. A further point arises whether, even if

he ought not to have done so, this Court can entertain a revision petition on the ground that there was an act without jurisdiction.

Order 33, Rule 5, Civil Procedure Code, says that the Court shall reject an application for permission to sue as a pauper if any one of five

conditions is fulfilled. The condition with which we are here concerned is set out in Sub-rule 4(d), ""where his allegations do not show a cause of

action."" Rule 6 says that where the Court sees no reasons to reject the application on any of the grounds stated in Rule 5 it should fix a day for

receiving evidence in proof of pauperism and for hearing any evidence adduced in disproof thereof. Rule 7(2) says that (on the day of hearing after

notice) the Court shall also hear any argument which the parties may desire to offer on the question whether on the face of the application and of

the evidence (if any) taken by the Court as herein provided, the applicant is or is not subject to any of the prohibitions specified in Rule 5. Rule 7

thus makes it clear that although the Court may admit an application, it is still open to it, after hearing the other side, to reject the application on any

of the. grounds set out in Sub-rules (a) to (e). With regard to Sub-rules (a), (b), (c) and (e), evidence may be necessary before it is possible to

decide whether the application should be rejected or not, but it is difficult to see how evidence can help the Court with regard to Sub-rule (d); for

the application can only be rejected on ground (d) if the allegations in the application itself do not show a cause of action. For deciding whether the

application should be rejected on that ground, arguments of the Other side may be very helpful but hardly the evidence. One can however envisage

cases in which something is said in the application which suggests, although not very directly, that there may not be a cause of action. In such cases

it is perhaps arguable, although I should be very reluctant . to accede to the argument, that the Court may look into the counter and have regard to

evidence in order to clarify what is already in the application. But in the present case there is admittedly nothing in the application which even

suggests that there is no cause of action. The learned Munsif thought that the plaintiff was playing a fraud on the Court in not mentioning the

previous litigation which would operate as res judicata; but I do not think that the plaintiff is bound to set out in the plaint defences that may be

open to the defendant. Even if he ought to have done so, this omission to do so would not make his application liable to be dismissed under Order

33, Rule 5(d). Sourendra Nath Mitra and Another Vs. Jatindra Nath Ghose and Others, has been relied on by the learned Advocate for the

respondent in support of the lower Court''s order; but I do not find in it anything which helps the respondent.

The other question is whether this Court should interfere in revision. Order 33, Rule 5 gives five grounds upon which an application for

permission to sue in forma pauperis can be rejected. If a Court rejects it on some other ground not set out in Order 33, Rule 5, that Court acts

without jurisdiction and this Court has therefore jurisdiction to interfere in revision. The learned advocate for the respondent relies on a decision of

Beasley, C. J., Subbayyar v. Vallappan Ambalam (1937) M.W.N. 415. In that case, there was something in the application to sue in forma

pauperis which indicated that the suit might be barred by res judicata, and the lower Court admitted certain evidence which threw further light on

this reference to earlier litigation in the application. The learned Chief Justice, while finding that the lower Court ought not to have gone into such an

enquiry, thought that its doing so was not an act in excess of its jurisdiction. That was a case such as I referred to in the last paragraph, in which

there were grounds set out in the application which afforded a basis for the lower Court''s order and where it might be said that the enquiry helped

to elucidate something that was set out in the application. Where, however, there is nothing in the application which suggests that the Court has no

jurisdiction, then clearly the Court cannot reject the application on the ground that ''his allegations do not show a cause of action.'' Sundaram

Chetty, J., says in Ramachandra Raju v. Venkiah (1926) 52 M.L.J. 330:

The non-existence of the cause of action should appear clearly on the face of the application itself and the Court acts without jurisdiction in

travelling beyond the four corners of the application.

The learned Chief Justice in the Full Bench decision of this Court in Rathnam Pillai v. Pappa Pillai (1902) 13 M.L.J. 292 says with regard to the

old Act which contained the same provisions:

I consider the Munsif acted illegally in allowing evidence to be put in on behalf : of the defendant with reference to the merits of the claim of the

party applying for leave to sue in forma pauperis and in dismissing the application on the ground that on the evidence on record the applicant had

no subsisting cause of action.

That decision was given in a revision petition and the order of the lower Court seems to have been set aside.

This petition is therefore allowed with costs in this Court and the application is restored to file and remitted to the lower Court for disposal

according to law.