C. PADMAVATHY Vs. VALSALA

JUDGEMENT

(1.) The revision petitioners challenge the order of the Sub Judge, Trivandrum in O.P. 204 of 1984. The Sub Judge held that the respondents are incapable of paying the court fee of Rs. 2,668 necessary for the suit and allowed them to sue in forma pauperis.

(2.) Revision petitioners contended that the property was sold by the fifth respondent in favour of the first revision petitioner on 10th June 1957 for valuable consideration and that assignment cannot be challenged by the respondents at this distance of time. While deciding whether the respondents are indigent persons incapable of paying the court fees Court is only concerned with the cause of action as pleaded by them and not the defence contentions. In Ganapathy Iyer v. Krishna Iyer 1986 KLT 1073 this Court held that the Court is primarily concerned only whether the allegations made in the petition would disclose a cause of action and the jurisdiction of the Court is restricted to ascertain whether on the allegations a cause of action exists. As the plaint allegations disclose a cause of action defence contentions to the contrary cannot be a matter for enquiry in the application for permission to sue as an indigent person.

(3.) A petition under O.33, R.1 deserves rejection where the allegations made by the applicant itself show that the suit would be barred by any law for the time being in force. But in an application to sue informa pauperis defence plea of limitation need not be considered if the allegation unfolds no bar of limitation. On the contrary, O.33, R.5(f) makes the position clear that the application deserves to be rejected if the allegations in the application would be sufficient to hold that the suit is barred by limitation. So at the stage of considering the application the Court is confined only to the allegations in the application. If the allegations disclose any bar of limitation, there is no necessity to embark on the enquiry as to the capacity of the applicant to pay required court fees and the Court need not waste its precious time for that purpose.