BAVOO Vs. XAVIER

JUDGEMENT

(1.) The appeal is against the order of the Additional Sub Judge, Ernakulam dismissing the appellant's application for leave to file a suit in forma pauperis. The same was dismissed on the ground that on a previous occasion the plaintiff appellant had filed pauper O. P. No. 7 of 1965 which was numbered as O. S. 122 of 1966, and which, thereafter, was dismissed for default as the plaintiff's Advocate reported no instructions. The learned Judge was therefore of the view that the present application was barred under O.9 R.9 of the C. P. C.

(2.) Counsel for the appellant submitted that the bar under O.9 R.9 of the CPC. cannot operate in respect of suits for partition where a continuing cause of action on the basis of the status of jointness as between the plaintiff and defendants can be predicated as the basis of the recurring cause of action. He cited the passage in Mulla's CPC. 13th Edn. at page 804 where, with respect to O.9 R.9, the position is stated thus:

(3.) Counsel for the respondent contended before us that the said principle cannot have application to the facts on hand. He stressed that the suit sought to be filed in the instance case, was not one for partition but for a declaration that a sale deed in favour of the 3rd defendant is benami for the plaintiff, and that the subsequent documents executed by the 3rd defendant are void and of no effect. This, no doubt, we see, is prayer (a) in the application for leave to sue in forma pauperis which may mature into a plaint. But prayer (b) which, in our opinion, is at least an equally important and main relief, if not the more important one, is for partition of the property as among the plaintiff and defendants 2,4 and 5. The prayer for declaration is really by way of removal of obstacle for the prayer for partition, which seems to us to be the main prayer in the suit. The principle stated by Mulla in his CPC. extracted above and the principle of the judicial decisions referred to therein are therefore attracted. We allow this appeal, set aside the order of the learned Judge and direct that O. P. 19 of 1975 be taken on file and disposed of in accordance with law and in the light of the observations contained in this judgment. No order as to costs.