GOVINDASAMI PILLAI Vs. MUNICIPAL COUNCIL OF KUMBAKONUM

JUDGEMENT

(1.) Upon an application to sue in forma pauperis the District Munsif decided that the claim, which was one for return of the balance of the sum deposited by the applicant upon a contract with the Kumbakonum Municipality for the collection of rents of stalls in the vegetable market, was time barred. Upon this ground alone he dismissed the application without hearing evidence and deciding the question of fact whether the applicant was or was not possessed of sufficient means to pay the court-fees on his suit. Two questions have been raised. 1. Whether the District Munsif acted without jurisdiction in dismissing the application on this ground.

(2.) Whether he was wrong in treating the claim as out of time, Order 33, Rule 5(d) of the Code of Civil Procedure declares that a court shall reject an application for permission to sue as pauper where the applicant s allegations do not show a cause of action, (in the Code of 1882 it was a right to sue in such court) and Rule 7(2) authorises the court to hear arguments on the question whether on the face of the application it is prohibited by Rule 5. 2. There is ample authority both under the old Code and the present Code for the view that cause of action in Rule 5(d) signifies a subsisting cause of action and that courts should dismiss applications if the cause of action is incapable of enforcement under the rules of limitation. Vide Vijendra Tirtha Swami v. Sudhindra Thirtha Swami (1895) I.L.R. 19 M. 197 : 5 M.L.J. 193, Amirtham v. Ahoar Manihham (1908) I.L.R. 27 M. 37 Subramania Chetty v. Malayandi Chetty (1914) I.L.W. 668 and the commentary to this rule in Woodroffe and Ameer Ali s Civil Procedure Code of 1908.

(3.) But it is argued that Vijendra Tirtha Swami v. Sudhindra Thirtha Swami (1895) I.L.R. 19 M. 197 : 5 M.L.J. 193 was overruled in the Full Bench decision in Bathnam Pillai v. Pappa PUlai and that the two. later cases were decisions of single Judges whose attention was not directed to this Full Bench decision of their own court which put a different interpretation on the language of the Code of Civil Procedure.