MECHANTILE CREDIT CORPORATION Vs. SATHYAN

JUDGEMENT

(1.) THE counter petitioners in O. P. (Pauper) No. 3/86 on the file of the Principal Sub Court, Trivandrum have preferred this revision against the order dated 16. 3. 1995 by which the application by the respondent hereinto file a suit as an indigent person under 0. 33 of the Code of Civil procedure (for short'cpc') was allowed. THE respondent herein filed the petition to permit him to file a suit as an indigent person for recovery of damages on account of theft of his vehicle alleged to have been committed by the petitioners herein. THE suit is valued at Rs. 4 ,08,000/-. THE court fee payable thereon is Rs. 40,780/ -. He pleaded that he has no sufficient means to pay the court fee.

(2.) THE court below held that the applicant (the respondent herein) has no sufficient means to raise the required funds to pay the court fee. He rejected the contention of the petitioners herein that the application is not maintainable.

(3.) R. 5 of 0. 33 CPC lays down certain grounds on which the court shall reject an application for permission to sue as an indigent person. Clause (f) thereof provides that where the allegations made by the applicant in the application show that the suit would be barred by any law for the time being in force, such an application should be rejected. It is admitted in the application that the thef t of the vehicle took place on 22. 5. 1982. The application to sue as an indigent person was filed on 2. 1. 1986. Art. 91 of the Limitation Act, 1963 lays down that the period of limitation for claiming compensation is three years which shall run from the date when the property is wrongfully taken or acquired by theft. It is well settled that a suit by an indigent person must be regarded as a suit instituted on the date of presentation of application to sue as an indigent person. From the averments in the application, it becomes clear that the claim is barred by limitation. This Court is Mohammed Kunju v. Sudhamma (1990 (1) KLT 464) held on an interpretation of 0. 33 R. 5 that if the suit appears to be barred by any law, then the court is bound to reject the application for permitting to sue as an indigent person. Learned counsel for the respondent relied on the decisions in a, V. Chetty v. A. R. Chetty (AIR 1970 Andhra Pradesh 411) and in Re. K. Annamalai Chettiar and Ors. (AIR 1956 Madras 677 ). In annamalai's case, it has been held that a court has jurisdiction to enquire in the pauper application stage itself into the question of limitation, allowing evidence to be adduced by both sides. The scope of the enquiry, however, is a matter within the discretion of the trial judge and in exercising this discretion it must not be exercised arbitrarily or capriciously and must be guided by sound judicial principles. The court should not at that stage embark upon the consideration of complicated or doubtful question of limitation as may arise on the allegation of the respondent (counter petitioner in the application) or decide questions affecting the merits, as questions of limitation are seldom pure questions of law but more often than not mixed questions of fact and law that more properly and fairly can be determined at the hearing of the suit. There can be no contrary opinion about the aforesaid proposition of law. But where it is apparent from the averments of the applicant and not from the defendants' statement in defence that the suit is barred by the law of limitation, the matter does not pose any complicated or doubtful questions of law The facts of the cases of Madras and Andhra Pradesh high Courts are clearly distinguishable inasmuch as in those cases, the defendants raised the plea of limitation in their defence. But here it is otherwise.