D SATYAVEL Vs. KOTA RANGA RAMANUJIAH

JUDGEMENT

(1.) THIS appeal has been filed against the order of the learned judge of the City civil Court, Madras, dismissing the application filed by the appellants under Order 33, Rule 1, Civil P. C. for permission to file the suit as paupers. The application was dismissed on the ground that prima facie the appellants had no cause of action. Evidently the learned judge meant to reject the application under Order 33, rule 5 (d) which says that the Court shall reject an application for permission to sue as a pauper where the allegations do not show a cause of action But the learned Judge overlooked that for this purpose what mattered were only the allegations in the application. Unless the allegations themselves do not show at cause of action, the learned judge was not justified in dismissing the application. It is true that Order 33, Rules 6 and 7 provide that, even where the Court itself does not reject the application under Order 33, Rule 5, it can still reject the application on the grounds mentioned in Order 33, Rule 5, after enquiry in the presence of the respondents to the application. But even after the enquiry the criterion to be satisfied is Order 33, Rule 5 (d), and for that purpose it is only the allegations in the application which must be taken into account. What, however, the learned judge did in this case was to discuss the case of the appellants in the light of two documents marked on the side of the respondents. In effect, he discussed the merits of the case, though he purported to do so only in a prima facie manner. This is plainly illegal. The position is really well settled and is covered by a number of authorities which could be found collected in any text book for instance, Mulla (latest Edition) Order 33, Rule 5, note 6. at pages 1406 and 1407 and A. I. R. Commentaries (latest edition) Order 33. Rule 5, note 5, and Order 33, Rule 7, note 1, pages 3738 and 3748. Of the decisions it Is sufficient to refer to two, one of the Supreme Court and the other of our High Court. In Vijaya Pratap Singh v. Dukh Haran Nath Singh. their Lordships of the Supreme Court observed (at pp. 681 and 682) (of SCR) - (at pp. 943, 944 of AIR):

(2.) IN Subramania Pillal v. Kavundappa Goundan, AIR 1943 Mad 663, Horwill, J. pointed out--

(3.) IT will be seen that the case of the plaintiffs rests on two bases (i) that the house in the hands of Batcha Gramani (paternal grandfather of the plaintiffs) was ancestral and (ii) that the half share gifted by Batcha Gramani to the father of the plaintiffs was ancestral in the hands of the father of the plaintiffs. So far as the first base is concerned, it is curious that the plaint allegations are inconsistent, because they say that the property which was allotted to Punyakoti devolved on his death on Batcha Gramani by right of survivorship and also by inheritance. Devolution by survivorship is inconsistent with devolution by inheritance. If it was survivorship Batcha Gramani should already have been owner or coparcener of the property with Punyakoti; but, if he got it only by inheritance Batcha Gramani could not have been owner along with Punyakoti. If we take only the allegation of survivorship into account, it may be taken (tentatively) that the property in the hands of Punyakoti and Batcha Gramani was ancestral and therefore, when Batcha gramani got it by survivorship it was ancestral in his hands. But, if he got it only by inheritance, it could not be ancestral; it would be the self-acquired property of batcha Gramani. It is permissible for the respondents to invite the Court to take into account the latter allegations of Batcha Gramani getting the property by inheritance, because that is part of the allegations in the plaint. But this would not entail dismissal of the application automatically, because, even if the property was the self-acquired property of Batcha Gramani, it is alleged in the plaint that under the gift deed by batcha Gramani dated 28-4-1949 the half share gifted to the father of the plaintiffs became ancestral in his hands as between him and his sons, the plaintiffs. Now, according to the passage in the decision of Horwill, J. , extracted already, it may be permissible to look into the settlement deed dated 28-4-1949, to see whether, as contended by the respondents, the father of the plaintiffs got an absolute estate in the half share and that it is not ancestral property in his hands as between him and his sons. But the question cannot be readily answered and, as pointed out by their Lordships of the Supreme Court in Arunachala mudaliar v. Muruganatha Mudaliar the intention of the donor would have to be gathered from the language of the document taken along with the surrounding circumstances. I am of the opinion that this question must according to the criterion indicated by their Lordships of the Supreme Court in be left for decision at the hearing of the suit and is not capable of being decided at this preliminary stage.