Shanmugha Boopathi and Others vs Periannan Servai and Others

P. Venugopal, J.—The minor petitioners through their mother the next friend, are the appellants before this Court. They filed a suit for

partition and separate possession of their l/10th share in the suit properties, alleging that they have no means to pay the Court fees, and they should

be permitted to file the suit in forma pauperis. The respondents contended that the suit properties have already been divided between the ancestors

of the parties by decree of Court and from the date of partition they are in separate possession and enjoyment of their own shares, and that the

petitioners have no cause of action for fling the suit in forma pauperis. The trial Court held that from the decree passed in O.S. No. 17 of 1896 it is

clear that the family properties have been already divided by metes and bounds so early as 1896 and the petitioners have no right in the family

properties and they have no cause of action for filing the suit and it is also barred by res judicata by virtue of the decree passed in O S No. 17 of

1896 and the petition was rejected. Aggrieved against the order of rejection, the petitioners have filed this appeal before this Court.

It is contended for the petitione-appellants that in a petition for permission to sue in forma pauperis the Court is merely concerned to ascertain

whether the allegations made in the petition show a cause of action or whether it is barred under any law and when allegations in the petition prima

Jade show that there is cause of action for the petitioners and the suit is hot barred under any law, it is not open to the Court to embark upon an

inquiry whether the allegations made are true in fact or whether the petitioners will succeed in the claims made by them and the Court under the

guise of holding an enquiry under Order 33, Rule 6 has extended its jurisdiction to the trial of issues which should be left open for decision at the

time of the hearing of the suit. In support of this contention, learned Counsel for the appellants petitioners relied on a decision of the Supreme

Court reported in Vijay Pratap Singh Vs. Dukh Haran Nath Singh and Another, . The learned Counsel for the respondents contended that in an

inquiry under Order 33, Rules 6 and 7, CPC it is open to the respondents to adduce evidence whether the petition filed by the petitioners attracts

the prohibitions contained in Order 33, Rule 5 and the evidence let in was merely to establish that the suit was barred by res judicata, in view of the

earlier decision in O.S. No. 17 of 1896, on the file of the Court of Subordinate Judge, Madurai and there has been no adjudication by the trial

Court, on the merits of the case and the order passed by the trial Court should, therefore, be sustained.

Between the two sons of Periannan Servai. viz., Avayathan Servai and Pagalavann Servai, there was a partition by metes and bounds by decree

of Court in O.S. No. 17 of 1896 on the file of Sub-Court, Madurai and Pagalavanni Servai was allotted his share A copy of the decree is marked

as Exhibit B-1. Under Exhibit B-2 Pagalavanni Servai sold the properties that fell to his share to his brother''s son, Thavasi Servai, for Rs.

18,000/-After the death of Pagalavanni Servai his son the first defendant as minor filed a suit to declare that the sale deed was void and the suit

was dismissed. Exhibit B-3 is the certified copy of the judgment. Through his maternal uncle, his next friend, the first defendant filed yet another suit

in O.S No. 81 of 1920 to set aside the decree under Exhibit B-3 and that suit and the appeal thereon were dismissed as seen from Exhibits B-4

and B-6. Exhibits B-1 to B-5 thus establish beyond doubt that the suit properties have been the subject matter of partition by metes and bounds

under Exhibit B-1 and the present suit by the petitioners who are no other than the sons of the first defendant is barred by res judicata.

The short question for consideration is whether the trial Court in an inquiry under Order 33, Rules 5 to 7, CPC was justified in relying on

Exhibits B-1 to B-5 in coming to the conclusion that there is no cause of action for the petitioners to file a suit and the suit is barred by res judicata.

This Court in a decision reported in Mythili Ammal and Anr. v. R. Mahadeva Ayyer and Ors. (1948) 3 Bom. L.R. 81, has held that under

Order 33, Rule 6 liberty is given to adduce evidence not only to appellants but also to the contesting respondent and it is open to the respondent to

show by adducing evidence that the suit is barred 1 either by res judicata or by limitation and that the trial Court will not be justified in shutting out

evidence in thus behalf restricting the inquiry to the bare allegations in the petition. The above decision was followed in a subsequent decision

reported in Ponnusami Goundan and Ors. v. Alamelammal and Ors. (1919) 4 Dom. L.R. 117. In a decision reported in Anganna Goundan alias

Chinnasami Goundan Vs. Angamuthu Goundan and Another, , a Division Bench of this Court held:

A Judge receiving an application for leave to sue as pauper is at liberty to reject the application after the examination of the applicant without

hearing the other side in the first instance. If the Court sees no reason to reject the application then it has to give notice to the Government Pleader

and the opposite party and fix a date for receiving such evidence as the applicant may adduce to prove that his application is not subject to any of

the prohibitions mentioned in Rule 5, and at that stage the opposite party is entitled to let in rebutting evidence to the contrary.

The evidence to be let in need not be restricted or confirmed to the mere allegations contained in the plaint.

The Supreme Court in the decision reported in Vijay Pratap Singh Vs. Dukh Haran Nath Singh and Another, , has merely laid down that the

jurisdiction of the trial Court at the stage of inquiry under Order 33, is restricted to ascertain whether the allegations made show a cause of action

for the plaintiff and the jurisdiction does not extend to trial of issues which has to be left open for decision at a later stage, and it cannot take into

consideration the defence which the defendant may raise on the merits of the case. From the decisions cited above, the resultant legal position can

be summed up in the following manner. On an application to file a suit in forma pauperis the first stage is examination of the petitioner under Order

33, Rule 4, CPC and suo motu rejection of the petition on any of the grounds specified under Order 33, Rule 5. The second stage is, the Court

gives notice to the opposite party and under Order 33, Rule 7 fixed a date for receiving such evidence as the applicant may adduce to prove that

his application is not subject to any of the prohibitions mentioned in Rule 5. At this second stage of inquiry it is open to the petitioner to let in

evidence that his petition is not subject to any of the prohibitions mentioned in Rule 5 and it is equally open to the respondent to let in evidence to

show that the petition is liable to be rejected on any of the grounds mentioned in order 33 Rule 5. in the present case, the petitioners have alleged

that the respondents have sent a reply alleging that there was already a partition in the family and the allegation in the reply notice are all false and

imaginary and there was no partition at any point of time in respect of the suit properties. So the question whether there was an earlier partition by

decree of Court and whether the present suit is barred by res judicata is one of the matters in respect of which the trial court has to hold an inquiry

under Order 33, Rule 7. Accordingly, the trial Court has considered Exhibits B-1 to B-5 and came to the conclusion that the suit is barred by res

judicate in view of Exhibit B-1., and the prohibition under Order 33, Rule 5(d)(I) is attracted Learned counsel for the appellants petitioners

contended, that under Order 33, Rule 7 only rebuttal evidence can be let in and when no evidence has been let in on the side of the petitioners, no

question of rebuttal evidence arises and in this view Exhibits B-1 to B-5 should not have been considered by the trial Court under Order 33, Rules

6 and 7 : any contra evidence showing that the petition is liable to be rejected under Order 33, Rule 5 can be let in by the respondents. The rule

cannot be construed to mean that it is only when the petitioners let in evidence to show that the petition is not subject to any of the prohibition

contained in Order 33, Rule 5, then alone the respondents have right to let in rebuttal evidence. Such undue restriction of the scope of Order 33,

Rule 6 is not warranted by a plain reading of the rule and the contention of the learned Counsel for the appellants is accordingly rejected.

Moreover the evidence let in is to disprove the allegations in the petition and to establish that the application attracts the prohibitions contained in

Rule 5. In the result, the C.M.A. fails and stands dismissed, in the circumstances, without costs.

This case having been set down this day ""for being mentioned"" the Court made the following order:

The ease is posted today for being mentioned in Court.

The learned Counsel for the appellants represents that by inadvertence no time was prayed for to pay the court-fees when the appeal was

disposed of by this Court on 16th October, 1979 and this Court may grant time to the appellants to pay court-fees. As the application to file the

suit in forma pauperis was dismissed and the same was confirmed in appeal by this Court and as now the learned Counsel for the Appellants

requests time for payment of court-tees, two month time from this date, is accordingly granted for paying the court fees failing which the order

dismissing the application to file the suit in forma pauperis will stand confirmed.