Rukku alias Rukkumani vs Kannan and Others

Ramanujam, J.—This appeal is directed against the order of the Court below in dismissing the Appellant''s petition for permission to file the

suit as an indigent person. Though the Court below has found that the Appellant is an indigent person, without due capacity to pay the court-fees, it

has chosen to dismiss the Appellant''s petition to sue as an indigent person on two grounds, viz., that there is no cause of action for the suit and that

the intended suit will be barred by res judicata. The lower Court, to find out whether there is a cause of action and whether the intended suit is

barred by res judicata, has examined as many as six documents filed by the Respondents and also the oral evidence adduced by the first

Respondent. After a considering the oral as well as the documentary evidence adduced by the Respondents, the Court below held that the

Appellant has no cause of action and the intended suit will be barred by res judicata. A perusal of the judgment of the Court below indicates that it

has more or less tried the suit which is sought to be filed by the Appellant after getting the requisite permission to sue in forma panperis and

ultimately finds that the Appellant has no cause of action and the suit, if filed will be res judicata

It is no doubt true that the Court, whose permission is sought for filling a suit as an indigent person, has to prime facie find that there is a cause of

action for the Plaintiff and the suit is not otherwise barred by law. But this prima facie finding has to be given on the basis of the pleadings,

particularly with reference to the averments made in the plaint. In this case, the court below instead of confining its decision to the pleadings in the

case has more or less conducted a trial on those questions and given its finding. The procedure adopted by the court below is, therefore, erroneous

and it amounts virtually a trial of the suit even before the suit is filed.

Order XXXIII rules, 5(d) and (d-I)(Madras Amendment) of the CPC are as follows:

Order XXXIII, Rule 5, CPC Code:

The court shall reject an application for permission to sue as an indigent person-

5(d) Where the allegations do not show a cause of action, or

5(d-1) where the suit appears to be barred by any law,

Order XXXIII, Rule 7 of the CPC sets down the procedure at the hearing of a petition to sue as an indigent person. Rule 7(1) of the CPC enables

the court to examine witnesses. Rule 7(1-A) however says that the examination of witnesses under Rule 7(1) shall be confined to matters regarding

pauperism, though the examination of the applicant may relate to any matters referred to in Rule 5. In view of the above provisions the order of the

Court below has to be set aside with a direction to the lower Court to decide the question of cause of action and the question of res judicata,

Prima facie on the basis of the pleadings in this case and also on the deposition of the Petitioner, who seeks leave to sue as an indigent person and

not on the basis of other evidence. Therefore, the appeal is allowed and the matter is remanded to the lower Court for fresh disposal. No costs.