The Theyagarayanagar Fund Limited. 22, Sarojini Street, T. Nagar, Madras - 600 017 vs D. Sivakami and 5 others

S. Jagadeesan, J.—The application is for setting aside the order dated 25.8.89 made by the Master in Application No. 1966/87 permitting

the first respondent herd me to file the suit as an indigent person. The Master, after considering. the as any judgments made in the plaint and the

affidavit filed an support of the Application No. 1966/87 as well as the report of the Tahsildar, Kancheepuram has allowed the application filed by

the first respondent herein and granted leave to file the suit as forma pauperis. The only objection urged before me by the counsel for the applicant

in his application is that the affidavit filed in support of the application does not disclose the cause of action and hence the application has to be

dismissed The counsel further contended that Order 33, Rule 2envisages the contents of application and as such the applicant ought to have

furnished the detailed particulars in the affidavit irrespective of the averments made in the plaint. He also relied upon three judgments by ported in

Vijai Pratap Singh v. Dakh Haran Nath Singh (1964 SCJ 266), Jogesh Chandra v. Sri Iswar Praja Ray Jew Thakur (AIR 1981 Calcutta 259) and

Nazir Ahmed Vs. Delhi Development Authority, .

I have gone through the affidavit filed by the applicant in Application No. 1966/87 as well as the plaint filed by the applicant there in for the

plaint itself, she has asked for the following reliefs.

(i) permitting the plaintiff to sue as indigent person;

(ii) to declare the mortgage deeds dated 1.10 75 and 9.2.76 as null and void and not binding on the plaintiff, since the plaintiff is the absolute.

owner of the property; and

(iii) to declare the sale deed dated 25.6 85 of 23.7.85 as null and void and she also prayed for consequential reliefs.

In the affidavit filed separately along with the application, she has stated that on account of alcoholic habit of the third defendant, she had been

induced to sell all the assets and she has also been fraudulently induced to sell the properties to the second defendant and she has absolutely no

assets to pay the court fee of Rs. 11.525/- and the only asset available with her is mentioned in the schedule i.e., few bangles, which are coaled

and they are not worth anything now and she may be permitted to file the suit as an indigent person. I have also gone through the order of the

Master as well as the oral evidence of the applicant.

Normally when the suit is filed by an indigent person, it will be filed as O.P. without separate affidavit. In the plaint itself, the applicant should

have furnished her assets by way of separate schedule. That is the requirement of Order 33, Rule 2, which is extracted below:

Contents of application:- Every application for permission to sue as an indigent person shall contain the particulars required in regard to plaints in

suits, a schedule of any movable or immovable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto; and

it shall be signed and verified in the manner prescribed for the signing and verification of pleadings.

Unfortunately in this case, the plaint, instead of filing as O.P. has been filed as O.S. and along with the plaint, separate application has been taken

out for seeking permission to sue as an indigent person, even though the same relief has been asked for in the plaint itself. In the affidavit, the

applicant therein gave the particulars with regard to her available assets in the schedule. When the affidavit has been filed along with the plaint, it

cannot be treated separately. We cannot blame the applicant therein for adopting this procedure. It is only the counsel''s mistake and it may be

pertinent to note that the averments in the affidavit are relating only to her assets and not in respect of the cause of action or any main relief. Hence

it should be taken as part of the plaint and when the plaint has revealed the cause of action and the affidavit has been separately filed, just to show

the assets, it cannot he said that cause of action had not been disclosed in the affidavit and hence the same cannot be accepted. According to me,

the objection raised by the applicant in this application is too technical.

Even as per the judgment referred to by the applicant reported in Vijai Pratap Singh v. Dukh Haran Nath Singh (1964 SCJ 266), it is clearly

stated as follows:

By the express terms of the order 33. Rule 5. clause (d). Civil Procedure Code, the Court is concerned to ascertain whether the allegations made

in the perilous show conies of action. The Court has not to see whether the claim made by the petitioners is likely to succeed, it has merely to

satisfy itself that the allegations 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 planting 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 mentis of the claim made by the

petitioner.

From the order of the Master, I am not able to see whether this objection has been taken before him. Further Order 33, Rule 5(a) makes it

clear that the Court shall reject an application for permission to sue as an indigent person; where it is not framed and presented in the manner

prescribed by Rules 2 and 3. We are not concerned with the other clauses at present. Now it is for the court to decide whether the presentation of

the plaint and the separate affidavit disclosing the asset alone would fall within the procedure prescribed by Rules 2 or 3. So far as this aspect is

concerned, it is not the case of the applicant that the papers have not been properly presented, as prescribed under this Rule. The only objection is

that affidavit filed by the 1st respondent docs not disclose the cause of action. As already stated, the affidavit contains only the assets and hence it

cannot be isolated from the plaint and it should be treated as part and parcel of the plaint. If that be so. there is no merit in the application of the

applicant. In view of the Supreme Court judgment referred to above. I am not referring the other two judgments and even otherwise the other two

judgments also clearly state that only if the main petition does not disclose cause of action, the application has to be dismissed. Here we have to

consider the plaint as the main petition under Order 33 Rule 1. Hence there is no merit in the application and the application is dismissed.