GANAPATHY IYER Vs. KRISHNA IYER

JUDGEMENT

(1.) Revision petitioner is the respondent in O. P. 76 of 1984 of the Sub Court, Palghat. The respondent herein as petitioner filed the O. P. praying that he may be allowed to institute the suit as an indigent person. The learned Sub Judge allowed the petition finding that the respondent is not in a position to pay the court fee.

(2.) The challenge in the revision petition is that as no cause of action has been made out in the petition the court below should have rejected it. Counsel contended that merely because a person is aa indigent person the court is not to automatically allow the petition in utter disregard of the mandatory provisions in O.33 R.5. Learned counsel for the respondent pointed out that the revision petitioner did not raise any objection in the counter statement questioning the cause of action and therefore ie cannot raise it for the first time before this court in revision.

(3.) In a pauper application, whenever a question is raised by the respondent that the petition does not disclose a cause of action it is incumbent upon the court to record a finding one way or the other. In a case, where such an objection is raised and the court failed to decide it the order will be defective. Under O.33 R.5 Clause.(d) it is mandatory upon the court to reject the application for permission to sue as an indigent person, where the allegations do not disclose cause of action. O.33 R.6 provides that where the court sees no reason to reject the application on any of the grounds stated in R.5, it shall fix a day with notice to the opposite party and Government Pleader for receiving such evidence as the applicant may adduce in proof of his pauperism and for hearing any evidence which may be adduced in disproof thereof. It is at such a stage that the revision petitioner tiled objections. In the objection the revision petitioner has no case that the allegations in the petition do not disclose a cause of action. Having not raised such a contention it is futile to assail the order of the court on the ground that it failed to consider whether there is cause of action or not.