BHIMO GANTAYAT Vs. TRINATH GANTAYAT

JUDGEMENT

(1.) THE proceeding out of which this Civil revision arises is an application for leave to sue as pauper filed by the petitioner herein against the defendants for maintenance out of the estate of one late Borojo Gantayat, arrears of maintenance and other incidental reliefs. The said application for leave to sue as pauper was rejected by the trial court on the grounds that the petitioner omitted to set out the whole assets with good faith; that there was no cause of action for the suit in that by reason of previous litigation the present suit is not maintainable as the decision of the earlier suit will operate as res judicata under Section 11 Civil Procedure code and further that the proposed suit is barred by limitation.

(2.) THE scope of enquiry in an application for leave to sue as pauper under Order 33, Rule 5 of 7 has been clearly laid down in a recent decision of the Supreme court Vijai Pratap Singh v. Dukb Haran Nath Singh, AIR 1962 SC 941. The Court is enjoined to reject a petition where the prohibitions mentioned in Clauses (a) to (e)of Rule 8 exist. Even if the petition is not so rejected at the bearing of the petition, if the Court is satis-fied as to existence of these prohibitions it maybe dismissed under Rule 7. By the express terms of Rule 5 (d) the Court is concerned to ascertain whether the allegations made in the petition show a cause of action. The court has not to see whether the claim made by the petitioner is likely to succeed : it has merely to satisfy itself that the allegations made in the petition, if accepted as true, would entitle the petitioner to the relief he claims. If accepting the allegations as true no case is made out for granting relief no cause of action would be shown and the petition must be rejected. But in ascertaining whether the petition shows a cause of action the Court does not enter upon a trial of the issues affecting the merits of the claim made by the petitioner. It cannot take into consideration the defence which the defendant may raise upon the merits; nor is the Court competent to make an elaborate enquiry into doubtful or com-plicated questions of law or fact. If the allegations in the petition, prima facie, show a causa of action, the Court cannot embark upon an enquiry whether the allegations are true in fact, or whether the petitioner will succeed in the claim made by him. By the statute, the jurisdiction of the Court is restricted to ascertaining whether on the allegations a cause of action is shown; the jurisdiction does not extend to trial of issues which must fairly be left for decision at the hearing of the suit.

(3.) IN the present case, paragraphs 4, 5, 6 and 7 of the plaint in the proposed suit for which leave to sue as pauper was filed by the petitioner are these;