Decided on November 30,1970

Rajakumar Bhagwatsaran Appellant
V.P.V. Rajan And Ors. Respondents


K. Veeraswami, J. - (1.) THESE appeals arise from a common order of Kunhamed Kutti, J. who agreeing with the Master dismissed the appeals of the common appellant and held that he was not entitled to sue as a pauper in the three cases. The appellant sought to recover damages from three newspapers, "Navamani", "Mail", and "Thanthi" for alleged printing and publication, deliberately and maliciously, of false, libellous and defamatory news against him. He described himself as a journalist and averred that having regard to his position in life in society he had been damnified by the publication to a considerable extent, which he assessed at Rupees one lakh. The applications for leave to sue in forma pauperis were admittedly filed beyond the period of two years of the publication of the alleged defamatory matter in the newspapers, But the appellant in order to show that they were within the period of limitation of one year stated that one Sri Arunachalam wrote for and got copies from the respondents of the defamatory publication on three different dates, to wit 28th October, 1964, 3rd December, 1964 and 18th January, 1965. According to him, if time were to be calculated from those dates the proposed suits would be within time. Though the Master found that the appellant was in fact a pauper, who would be unable to pay a large sum of Court -fee on the fabulous claim made, he held that the appellant was not entitled to leave to sue in forma pauperis because he was guilty of suppression in the application for leave to sue in forma pauperis of the fact that he had been drawing a sum of Rs. 300 per mensem and that further Arunachalam had not been examined and he appeared to be a kind of a fictitious person and that therefore the publication on the dates alleged had not been established which is the essence of the cause of action and that would bear also on limitation. Kunhamed Kutti, J., substantially confirmed these findings of the Master. 2. We are of the same view. Utmost good faith, as held in Chellammal v. Muthulakshmi : AIR 1945 Mad 296 , is expected on the part of the applicants who seek leave to sue in forma pauperis. Motive for suppression is irrelevant. It is no use contending that having regard to the large amount of Court -fee that has to be paid suppression of Rs. 300 per mensum would not make any difference. The point, as we said, is one of good faith and not whether, in view of the large amount of Court -fee the appellant who is shown to be in good 'faith making the application without full details would be unable to pay Court fee. That is a different issue and on that the Master held, as we said, in his favour. Apart from that, we are also in agreement with the finding of Kunhamed Kutti, J., that the suit appears to be barred by limitation. Under Order 33, Rule 5(d -1) of the Code of Civil Procedure which was introduced as an amendment in Madras, the Court should reject an application for permission to sue as a pauper, where the suit appears to be barred by any law. The Court is, therefore, entitled and in fact bound to find the facts necessary for deciding this question of limitation, not finally of course, but to form a prima facie view on that. Arunachalam, to whom the publication is said to have been made, had not been examined and the Master as well Kunhamed Kutti, J. were not satisfied whether in the absence of his evidence, the ipse dixit of the appellant could be accepted. Kunhamed Kutti, J., in fact was inclined to think that Arunachalam was a kind of mystical person. The appellant who appears in person contends that for the purpose of granting leave what would matter are the allegations in the plaint and relies on Vijai Pratap Singh v. Dukh Haran Nath Singh : (1964) 1 An.W.R. 79 :, (1964) S.C.J. 266 :, (1964) 1 M.L.J. 79 . The Supreme Court there held that the Court's duty under Order 33, Rule 5, Clause (d) is 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. To that extent, the appellant is right. But here the question of publication is bound up with the question of limitation. As we said, the appellant would have one year as limitation from the date of the publication of the alleged defamatory matter. That would make it necessary for the Court to enquire when exactly the publication had been made, though the enquiry would be only a prima facie one. That enquiry has been held by the Master and reviewed by Kunhamad Kutti, J., in appeal and both were satisfied that the publication to Arunachalam was not satisfactorily shown with the result that the leave petitions were not proved to appear to be within the period of limitation.
(2.) THE appeals are dismissed, but with no costs.;

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