Rajendran and Others vs Rajambal Ammal and Others

The petitioner herein filed O. P. 20 of 1973 on the file of the learned Subordinate Judge, Tiruvannamalai for leave to institute the concerned suit

in forma pauperis. That application was resisted by the respondents in this revision mainly on the ground that the proposed suit is barred by the

principles of respondent judicata in view of the judgment and decree in O. S. 309 of 1968 on the file of the District Munsif Court, Tiruvannamalai.

The court below considered this application O. P. 20 of 1973 and found that the petitioners are paupers; but dismissed the application on a

consideration of the second contention raised by the respondents, viz, that the proposed suit is barred by the principles of res judicata. The present

revision is directed against the orders of the court below.

Mr. S.K. Narasimhan, learned counsel for the petitioners, submits that the question that has to be gone into only on a consideration in extenso of

the merits and demerits of the contentions of the parties and this is exactly what has been done by the court below and the court below has

transgressed the limits of enquiry under O. 33, Rr 5,6, and 7 C. P. C.

On going through the order of the court below, I find that what the learned counsel for the petitioners states is not without basis. The court

below has discussed the question of respondent judicata at some length. It has considered the merits of this contention in detail, and it must be said

that it has practically embarked upon a detailed enquiry on this disputed question on res judicata and has given a finding against the petitioners. So

far as the State of Tamil Nadu is concerned, by an amendment in 1940, for cl. (D) of R. 5 of O. 33, a substitution has been made by incorporating

(d-1) also to go along with cl. (D) which read thus-

(d) Where the allegation do not show a cause or action or

(d-1) Where the suit appears to be barred by any law, or"".

It is well settled that if the allegations of the applicant prima facie disclose a cause of action the Court ought not to embark upon the consideration

of a complicated or doubtful question of law of fact that may arise upon the allegation of the applicant for the purpose of determining whether the

allegations show a cause of action, for it is contrary to the scheme and the provisions of O. 33 that the Court for the purpose of disposing of an

application for leave to sue in forma pauperis should decide issues affecting the merits that properly and fairly can be determined at the hearing of

the suit. The Court is not bound to go beyond the facts apparent on the face of the petition or plaint and the court has to look into the allegations

made by the applicant and should not enter into the merits or demerits of the claim but it has to decide the question from the allegation found in the

petition or plaint itself. These principles will apply both for cl. (D) and cl. (D-1) of O. 33, R. 5 C. P. C. as they stand incorporated by the

amendment introduced in Tamil Nadu.

In Vijay Pratap Singh Vs. Dukh Haran Nath Singh and Another, the Supreme Court laid down the law in the law following terms (at p. 941) :

By the express terms of R. 5, cl. (D) the court is concerned to ascertain whether the allegations made in the petition show a cause of action. The

court has not to see whether the claim made by the petitioner is likely to succeed; it has merely to satisfy itself that the allegation made in the

petition, if accepted as true, would entitle the petitioner to the relief he claims. If accepting those allegations as true no case is made out for granting

relief no cause of action would be shown and the petition must be rejected. 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 defence

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. If the allegations in the petition, prima facie, show a cause of action, the court cannot embark upon an enquiry whether the allegations

are true in fact, or whether the petitioner will succeed in the claims made by him. 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 trail of issues which must fairly be left for

decision at the hearing of the suit.

If the above principles are kept in mind, there cannot be any difficulty in finding that the court below has ignored the said principles and has

indulged in assessing the merits and demerits of the contentions with reference to res judicata pleaded by the respondents. This is not competent

and as stated earlier, the tenability or otherwise of this contention can be allowed to be decided at a later stage, and the two stages of investigation

have been recognised by a Division Bench of this Court consisting of Govinda Menon and Basheer Ahmed Sayeed JJ. in Anganna Goundan alias

Chinnasami Goundan Vs. Angamuthu Goundan and Another, who observed as follows (at p. 274):

The word '' appears'' in R. 5(d-1) does not cannote any quietus or finality but it was designedly used to make a distinction between the final

disposal of the suit and a decisions at the stage before it is registered as a suit.

In the said circumstances, the orders of the court below cannot be sustained and accordingly this revision is allowed and the orders of the courts

below are set aside and the application O. P. 20 of 1973 will stand allowed and the suit will be registered and proceeded with in accordance with

law. The respondents will be at liberty to raise all the contentions that are available to them including the pleas of res judicata in the suit. There will

be no order as to costs in this revision.

Revision allowed.