KANAGAMMAL Vs. PANCHAPAKESA ODAYAR

JUDGEMENT

(1.) Plaintiffs are the petitioners. The 1st plaintiff is the mother of the minor 2nd plaintiff. Their application to the learned Subordinate Judge of Mayavaram to be allowed to sue in forma pauperis to obtain reliefs of future maintenance and recovery of arrears of maintenance was rejected by the learned Subordinate Judge. The total value of the reliefs claimed by them was Rs. 11,700. The first plaintiff gave the value of the properties belonging to her as Rs. 327 and the value of the properties belonging to the minor 2nd plaintiff as nil. The Rs. 327 worth of moveables was of course not sufficient to pay the Court fee stamps on the reliefs worth Rs. 11,700, the Court fee required being Rs. 535. The Lower Court did not go into the question whether the plaintiff s pauperism was established but it rejected the application on the ground that the requirements of Order 33, Rule 5, had not been complied with by the petitioners. That Rule 5 says that the Court should reject an application for permission to sue as a pauper (a) where the application is not framed and presented in the manner prescribed by Rules 2 and 3, (6) where the applicant is not a pauper, (c) where he has within two months next before the presentation of the application, disposed of any property fraudulently or in order to be able to apply for permission to sue as a pauper, (d) where his allegations do not show a cause of action, (e) where he has entered into any agreement with reference to the subject matter of the proposed suit under which any other person has obtained an interest in such subject matter. It is difficult to gather from the learned Subordinate Judge s order what particular requirements of Rule 5 Order 33 had not been complied with by the petitioners. It is admitted that the questions (a), (c) and (e) arising under Rule 5 were not considered or relied on by the Subordinate Judge and that those clauses need not be considered in dealing with the petitioners application. We have only to consider Clauses (a) and (d).

(2.) As regards Clause (d), unless the petitioners allegations in their petition do not show "a cause of action" (that is, any cause of action), the Court cannot reject the application. The Subordinate Judge does not say in his order that the allegations do not show any cause of action. He only says that it is doubtful whether the 2nd plaintiff can be awarded maintenance if he was entitled to sue his putative father s undivided brother (1st defendant) for partition of the undivided family properties of his said father and of the 1st defendant.

(3.) It is the case of the defendants themselves that the 2nd plaintiff has no such right to sue for partition. If so, the 2nd plaintiff has undoubtedly a cause of action (if the allegations in the pauper application are true) to sue for maintenance; If again the 1st plaintiff is the permanent concubine of the 1st defendant s deceased brother, her claim for maintenance cannot be said to be groundless. As said in Vijendra Tirtha Swami v. Sudhindra Tirtha Swami (1895) I.L.R. 19 M. 197 at page 198, "where there is a ground for reasonable doubt, leave should be granted and should not be refused." In the Full Bench, Case, Rathanam Pillai v. Pappa Pillai (1902) 13 M.L.J. 292 it was held that evidence on the merits of the case of the, pauper applicant cannot be gone into in the preliminary investigation of the question whether leave ought to be granted or not and K. Ranganayaka Animal v. K. Venkatachellapathi Naidu (1881) I.L.R. 4 M. 323 was followed. It may be that the plaintiffs when they claimed maintenance also on behalf of the two daughters of the 1st plaintiff, have added a claim which is not supported by any cause of action vesting in the plaintiffs but Clause (d) of Rule 5 does not justify the dismissal of an application simply because some of the several causes of action mentioned by the plaintiffs, are not shown to vest in themselves and only the others vest in them. It is only where the plaintiffs allegations do not show any cause of action as regards any of the reliefs that the application could be rejected under that Rule.