1. Raghunandandas Babaji (Opposite Party-1) filed an application under Order 33, Rule 1 of the CPC, on 11-3-1966 against Gobardhan Das Babaji (Petitioner), Udaya Pratap Singh Deo; ex-Zamindar of Seragad (Opposite Party-2) and the Collector of Ganjam (Opposite Party-3). The suit was valued at Rs. 16,576, the court-fees payable being Rs. 1,586.75 paise. Opposite Party-1 asserted that he had movable properties worth Rs. 47.00 only and no other properties. The essential facts mentioned in the pauper application regarding the nature of the rights of Opposite Party-1 may be stated in brief. The suit institution is Narayan Muth situated at Seragad. The presiding deity of the Muth is Luxminarayan Mahapravu. The Muth is the private endowment of the ex-Zamindars of Seragad who were successively exercising their rights in the management of the Muth. The public and the Commissioner of Endowments have no rights therein. Late Zamindar Sri Lakshmi Nrusingh Deo appointed Sri Mahant Bihari Das, the Mahant of Dengadi, to manage the Muth. Bihari Das died on 8-12-1920. After his death, his Chela Krushna Charan Das was appointed as the manager of the suit institution. Krushna Charan Das with the permission of the Zamindar took Opposite Party-1 as his Chela to manage the properties. Opposite Party-1 was managing the suit institution on the strength of a will executed on 15-6-1945 by Krushna Charan Das, who died on 31-7-1958. Without the knowledge of Opposite Party-1, late Krushna Charan Das executed another will in 1958 in favour of the petitioner Under the later will the petitioner was appointed the Mahant of the institutions including the suit institution.

2. It was asserted in para 7 of the petition that the will in favour of the petitioner was the outcome of undue influence and fraud when Krushna Charan Das was not in his senses on account of administration of in-toxicants like opium and ganja. On the strength of the will the petitioner filed an application before the Endowment Commissioner to recognise him as the Mahant of all the institutions including the suit institution. The Commissioner of Endowments by his order dated 2-9-1963 accepted the will of the year 1958 and appointed the petitioner as the hereditary trustee of all the institutions and the possession of the institutions and the properties was delivered to the petitioner on 21-11-1965. It was further asserted in the petition that no person other than the zamindars had the right to nominate trustee for the suit institution and, as such, the order of the Commissioner is illegal, null and void and is not binding on either Opposite Party-1 or the zamindar.

3. The suit was filed for a declaration that the Muth is a private institution of the Zamindar of Seragad and the plaintiff was the duly appointed Mahant and for recovery of movable and immovable properties belonging to the suit institution from the petitioner. The causes of action were alleged to have arisen on 2-9-1963 when the Endowment Commissioner passed the order recognizing the petitioner as the hereditary trustee, and on 21-11-1965 when delivery of possession was given.

4. On 25-4-1966 the Court issued notice to the petitioner and Opposite Parties 2 and 3. A counter was filed on behalf of the Collector asserting that Opposite Party-1 had sufficient means to pay the court-fees. Opposite Party-2 did not file any counter. The petitioner filed a counter asserting that Opposite Party-1 had sufficient means to pay the court-fees and that the suit was barred by limitation under Section 39 of the Orissa Hindu Religious Endowment Act (hereinafter referred to as ‘the Act’). Absence of jurisdiction of the Civil Court under Section 41 of the Act was, however, not pleaded.

5. The learned Subordinate Judge, Aska, accepted the case of Opposite Party-1 that he had no means to pay the requisite court-fees. Regarding the objection that the suit was barred by limitation under Section 39 of the Act he observed:

“In my view the question of limitation can also be taken up in this connection. But the question is not so simple that it can be prima facie said that the suit is barred. According to me, in view of the contention of the petitioner that the Zamindars of Seragad had the right to nominate Chella, I think the scope of the suit is quite different than a suit brought against an order passed under Section 39.”

6. He was of the opinion that complicated questions relating to limitation and jurisdiction should be properly taken up at the stage of trial.

7. Against this order of the learned Subordinate Judge allowing Opposite Party-1 to sue in forma pauperis, this revision has been filed. The finding of the learned Subordinate Judge that Opposite Party-1 has not sufficient means to pay the requisite court-fees was rightly not assailed in revision as it was purely one of fact.

8. Mr. Misra raised two contentions: (1) that the suit is barred by limitation under Section 39 of the Act; and (2) that on the plaintiff's case that the suit institution was the private property of the Zamindars of Seragarh, the suit is barred under Section 41 of the Act.

9. Both the questions require careful con sideration.

10. It is to be noted that the only materials on record are the pauper application, the counter filed by the petitioner and the evidence of the witnesses examined under Order 33, Rule 7(2) on the question of pauperism.

11. In the pauper application there is absolutely no reference to S. 39 of the Act or to the fact that the order of the Endowment Commissioner was passed under that section. In the counter filed by the petitioner there is no reference to S. 41 of the Act though there is a reference to S. 39. The evidence of witnesses is confined only to pauperism.

12. The moot question for consideration is what materials are admissible to come to a conclusion that the suit would be barred by limitation or that the Civil Court would have no jurisdiction to entertain the suit of the aforesaid nature. This requires a thorough examination of the scope of the relevant provisions of Order 33 of the CPC.

13. Order 33, Rule 1, provides for suits being instituted in forma pauperis. Rule 2 deals with the contents of the application and says that every application for permission to sue as a pauper shall contain the particulars required in regard to plaints in all suits: a schedule of any movable or immovable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto; and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings. Rule 3 prescribes the manner of presentation of the application. R. 4 lays down that where the application is in proper form and duly presented, the Court may, if it thinks fit, examine the applicant, or his agent when the applicant is allowed to appear by agent, regarding the merits of the claim and the property of the applicant.

14. Rule 5, with the Orissa amendment, prescribes when the pauper application is to be rejected. It runs thus:

5. The Court shall reject an application for permission to sue as a pauper—

(a) where it is not framed and presented in the manner prescribed by Rules 2 and 3, or

(b) where the applicant is not a pauper, or

(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, or

(d) where his allegations do not show a cause of action, or

(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, or

(f) where he has entered into an arrangement with any other person to finance the litigation, or

(g) where the suit appears to be barred by any law.

15. Under Rule 6, where the Court sees no reason to reject the application on any of the grounds stated in Rule 5, it shall fix a day (of which at least ten days' clear notice shall be given to the Opposite Party and the Government Pleader) for receiving such evidence as the applicant may adduce in proof of his pauperism, and for hearing any evidence which may be adduced in dis-proof thereof.

16. Rule 7 prescribes the procedure at hearing. It runs thus:

7.(1) On the day so fixed or as soon thereafter as may be convenient, the Court shall examine the witnesses (if any) produced by either party, and may examine the applicant or his agent, and shall make a memorandum of the substance of their evidence.

(2) The Court shall also hear any argument which the parties may desire to offer on the question whether, on the face of the application and of the evidence (if any) taken by the Court as herein provided, the applicant is or is not subject to any of the prohibitions specified in Rule 5.

17. A critical examination of the aforesaid rules would show that up to the stage ending with Rule 5, the entire proceeding is ex parte, that is, in the absence of persons arrayed as opposite parties in the pauper application. If the Court chooses to examine the applicant or his agent under Rule 4(1), the examination would cover both the merits of the claim and the properties of the applicant. In contradistinction to the provisions of the Rule 4, the examination of witnesses prescribed in Rules 6 and 7, would be confined only to the question of pauperism and would not extend to the question of merits.

18. If the Court does not reject the application under Rule 5, then alone notice would go to the persons arrayed as opposite parties in the pauper application. Rule 6 clearly lays down that the parties would adduce evidence either in proof or disproof of pauperism. No evidence can be given as to the merits of the case.

19. Some of the items referred to in Rule 5 relate to the question of pauperism. Evidence in respect of those items can be given at the stage, of examination of witnesses under Rule 7(2). For instance, various items of movable and immovable properties are to be mentioned with the estimated value thereof. At the stage of hearing under Rule 7, evidence can be given that certain items of properties were excluded or concealed. Similarly evidence may be given with regard to Rule 5(b). Whether the applicant is a pauper or not will depend upon the value of his property and the quantum of court-fees payable. If the property has been undervalued, evidence on that matter can be given under Rule 7. Similarly, evidence can be given with regard to Rule 5(c). That is a matter which relates to pauperism. Evidence can also be given with regard to Rule 5(e) and (f). Those clauses have direct bearing on the question of pauperism and evidence at the stage of Rule 7 would cover such cases.

20. No evidence can, however, be given at the stage of Rule 7 with regard to Rule 5(d). The matter is concluded by AIR 1962 SC 941, Vijai Pratap v. Dukh Haran Nath. Their Lordships in para 9 observed thus:

21. By the express terms of R. 5, Cl. (d), the Court is concerned to ascertain whether the allegations made in the petition show a cause of action. The Court 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. If accepting those allegations as true, no case is made out for granting relief, no cause of action would be shown and the petition must be rejected. But in ascertaining whether the petition shows a cause of action Court does not enter upon a trial of all the issues affecting the merits of the claim made by the petitioner. It cannot take into consideration the defences which the defendant may raise upon the merits, nor is the Court competent to make an inquiry into doubtful or complicated questions of law and tact. If the allegations in the petition, prima facie, show a cause of action, the Court cannot embark upon an inquiry whether the allegations are true in fact, or whether the petitioner will succeed in the claims made by him. By the Statute, the jurisdiction of the Court is restricted to ascertaining whether on the allegations a cause of action is shown; the jurisdiction does not extend to trial of issues which must fairly be left for decision at the hearing of the suit.

22. Thus on the aforesaid authoritative pronouncement, the defence cannot be taken into consideration in deciding the question of absence of cause of action. Evidence is not also admissible to challenge the allegation in the pauper application that there is cause of action.

23. The identical principle applies to Rule 5, Cl. (g). The Court is to examine whether the suit is barred by any law. If the suit is barred by limitation under Sec. 39 of the Act, or the jurisdiction of the Civil Court is ousted by Sec. 41 of the Act, the pauper application is liable to be dismissed in limine.

24. But the real question for consideration is on what materials the Court would arrive at such a conclusion. The counter filed by the petitioner is not evidence. Besides there is no provision for filing counter objection. The practice to entertain objection is not under any of those rules but for convenience of knowing the defence case. The averments in the counter cannot be used at that stage to negative applicant's case in any other matter except on the question of pauperism. Nor is it open to the petitioner to give evidence under Rule 7 to establish that the suit is barred by limitation, or that the Civil Court has no jurisdiction; because that would relate to the domain of the merits of the case which is prohibited by Rules 6 and 7. On the aforesaid principle, the only material on the basis of which these two questions are to be determined is the pauper application itself. If under R. 4 the applicant himself has made any statement on the merits of the matters relating to limitation and jurisdiction that might also be taken into consideration.

25. In this case there has been no examination of the applicant under Rule 4. No other evidence is admissible. There are authorities in support of the aforesaid conclusion. See AIR 1919 Cal 385, Jogendra Narayan Ray… v. Durga Charan Guha Thakurta…Opposite Party., AIR 1943 Bom 318, Burjorji v. Murlidhar, AIR 1950 Pat 517, Abdul Wakil v. Bibi Talimunnisa and 29 Cut LT 681 : (AIR 1964 Ori 106), Sibasankar Tiadi v. Koli Tiadhiani. Rule 6 has been amended in Madras since 1940. The principle laid down in AIR 1956 Mad 271, Angamma Goudhan v. Angamuthu Goudan, has no application to Orissa where it remains unamended. The petitioner has filed the order of the Endowment Commissioner with a memo in this Court. On the aforesaid analysis it is not admissible in evidence either to show the nature of the order and the statutory provision under which it has passed to count the period of limitation. In the counter there is reference to Sec. 39 of the Act. But as has already been said, the defence of the petitioner is not admissible in the determination of the questions of limitation and want of jurisdiction. In this case, two witnesses have been examined by opposite party and one by the petitioner. Their evidence was rightly confined to the question of pauperism. They have made no statement either on the question of limitation or jurisdiction. Even if they had given such evidence, that would have been inadmissible in evidence.

26. The only material on the basis of which the question of limitation or want of jurisdiction has to be examined in this case, is the pauper application. In it there is no reference to the order of the Endowment Commissioner being passed under S. 39 of the Act. One cannot accordingly say that the order was under Sec. 39 and the suit would be barred by limitation as not being filed within three months from the date of the order. Sec. 39 of the Act runs thus—

27. When the hereditary trustee of a math nominates his successor he shall give intimation in writing to the Commissioner. Subsequent changes in the nomination may also be intimated within three months of the nomination. For purpose of succession the last nominee so intimated shall be recognised by the Commissioner. If no appointment is made during lifetime of the trustee, the Commissioner shall have full power to appoint an Executive Officer and the trust shall be brought under the direct control of the Commissioner and shall be treated as an institution under Chapter VII. In making this appointment the Commissioner shall have due regard to the custom and usage and tenets of the math. Any person aggrieved by the decision may within ninety days from the date of the decision institute a suit in a competent Court of law to establish his right to the office of the hereditary trustee but pending the result of such suit, if any, the order of the Commissioner shall be final.

28. One of the ingredient of the section is that when the hereditary trustee of a Muth nominates his successor, he shall give intimation in writing to the Commissioner. Subsequent changes in the nomination may also be intimated. There is nothing in the four corners of the pauper application that any intimation in writing was given by Krushna Charan Das to the Commissioner about the nomination of the petitioner. That raises a question whether Sec. 39 in terms would apply. As their Lordships of the Supreme Court say complicated and controversial matters should not be decided at the stage of pauper application and would appropriately be left to be determined at the trial.

29. Under Rule 7, it is open to the parties to advance arguments as to whether Rule 5 has been complied with or not. Any argument on the basis of pauper application itself would not lead to an unassailable conclusion that the suit is barred by limitation or that the Civil Court has no jurisdiction to entertain the suit. There are allegations of fraud and undue influence regarding the execution of the Will in favour of the petitioner. Fraud, if established, vitiates every transaction. It would be appropriate to consider the question of want of jurisdiction of the Civil Court and the question of limitation during trial and not to shut up opposite party in limine. It need hardly be stated that the questions of jurisdiction and the suit being barred by limitation are to be thoroughly gone into at the trial stage and the suit is liable to be dismissed if the objections are upheld. On the aforesaid view, the revision has no merit and is accordingly dismissed. In the circumstances there would be no order as to costs.

SSG/D.V.C

30. Application dismissed.