MUSAMMAT DEVUPALLI AMMANNA WINDOW OF DALAYYA OF KATHULAPETA Vs. PEDIREDLA NARAYANASAMI NAIDU OF JAGANNADASUPETA

JUDGEMENT

(1.) I think the Subordinate Judge acted in the exercise of his jurisdiction with material irregularity in dealing with the petitioner s pauper application. The petitioner stated that her husband died in January 1902, and that the 2nd defendant disposed of the property in April 1903. Her case was that the cause of action for this 3uit arose in April 1903. According to that statement in the plaint the suit is in time. The Subordinate Judge considered it very likely that the husband died before the 30th January 1902 and that as the plaint was presented on the 30th January 1914, the suit was barred by limitation. He is not justified in assuming, without any proof in that behalf, that the husband died before the 30th January 1902 and from the allegations made in the petition there is nothing to suggest that the suit was not in time. Moreover, in this case before the judgment was delivered by the Subordinate Judge, an affidavit was put in by the pauper applicant alleging that she was in possession of the lands till 1903 and that in, paragraph 5 of her petition she intended to allege and did allege though not in clear terms that the property was in her possession till that date. If the Sub-Judge entertained any doubt regarding the question of limitation he might have raised a preliminary issue and taken evidence upon it and come to a conclusion before disposing of the application. If the allegations in the plaint suggest a prima facts case and show a cause of action, it is not open to the Judge to dismiss it on surmises which are not based upon any evidence or on the pleadings filed in the case. In Nawab Bahadur of Murshidabad v. Harish Chandra Acharjee 11 Ind. Cas. 55 : 13 C.L.J. 593 the learned Judges examined the plaint to see whether the lower Court was right in its conclusion that the plaint did disclose a cause of action. In a very recent case decided by this Court the learned Judges held that evidence may be taken upon a preliminary point before deciding the question of poverty or the question of there being a subsisting cause of astion for the suit. Under these circumstances I cannot but regard the procedure adopted by the Subordinate Judge as being irregular. I must, therefore, set aside his order and direct him to take the petition on his file and dispose of it according to law. Costs will abide the result.