CHARUKONDA KEECHAPPA Vs. PUJARI LAKSHMANNA

JUDGEMENT

(1.) This revision petition is against an order of the District Judge of Anantapur refusing to permit the plaintiff to sue in forma pauperis. The suit was for a declaration that the alleged Will of his maternal grandfather was not genuine. The plaintiff is described in the plaint as aged 18. The District Judge has found that the petitioner is able to pay the Court-fee on his plaint and has already expressed an opinion on the merits of the case that there was a former litigation started by his grandmother and that the judgment in that suit bars the present suit as res judicata, and even if it is not res judicata, the petitioner has not got any subsisting prima facie cause of action He relies on Amirtham V/s. Alwar Manikkam [1904] 27 Mad. 37, The plaintiff has filed this petition.

(2.) Two points have been argued before me. The first is that the District Judge is wrong in going into the merits of the plaintiff's case as disclosed in the plaint. The decision in Amirtham V/s. Alwar Manikkam [1904] 27 Mad. 37 was followed in Sankararama Ayyar V/s. Subaramania Ayyar [1904] 27 Mad. 120. But the latter decision was reversed in Letters Patent appeal and we must now take it that it is not permissible in a pauper petition to go into an elaborate enquiry on the merits of the plaintiff's case. But at the same time, some effect must be given to the provisions in Order 33, Rule 5, which permits the Court to reject the plaintiff's application on the ground that his allegations do not show a cause of action. Mr. Somayya contends for the respondent that while an elaborate enquiry into the merits is prohibited, if on a slight enquiry it can be shown that the plaintiff has really no subsisting right, it is open to the Court to express an opinion on such a matter. Here, what has been done is the exhibiting of Ex. 1, the judgment in the former suit. On the other hand, Mr. Sesha Ayyangar relies on Govindasmi Pillai V/s. Municipal Council, Kumbakonam [1918] 41 Mad. 620 which has been followed in some oases. According to that case the Court cannot go info the question of limitation to see if the petitioner has a subsisting cause of action.

(3.) I do not think it necessary to express any final opinion on this question as this petition may be disposed, of on the other ground raised by the petitioner. But to safeguard the interests of the petitioner, I think it is necessary for me to formally vacate this portion of the lower Court's order so that if the petitioner choose to file a regular suit the plea of res judicata may not be pub forward by reason of anything contained in this order. I, therefore, direct that para. 4 of the learned Judge's order be considered as expunged from his Judgment.