IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Civil Revision No.230 of 2003 Date of Decision: 11.12.2008 ________________________________________________________________ Nimi … Petitioner Versus Shiv Lal and others … Respondents. ________________________________________________________________ Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting? Yes For the Petitioner (s) : Mr. Vinay Thakur, Advocate. For the Respondents : Mr. Romesh Verma, counsel for respondents 1 to 3. Mr.Rajesh Mandhotra, Dy.A.G. for respondent No.4. ________________________________________________________________ Deepak Gupta, J. (Oral ). This petition is directed against the judgment dated 21.5.2003 passed by learned District Judge, Shimla whereby he has dismissed the appeal filed by the present petitioner and upheld the order of the learned Sub Judge, Theog dated 2.1.1999 rejecting the application filed by the petitioner under Order 33 Rules 1&2 to sue in forma pauperis on the ground that as per the averments made in the application the suit would not be within limitation. The facts necessary for disposal of the present Revision Petition are that the petitioner alleged that she is a poor lady and that on 20.2.1983 she was assaulted by the respondents. 2 Thereafter, her husband had lodged an F.I.R. and the defendants were tried for having committed offence punishable under Sections 452, 323, 427 read with Section 506 IPC. The petitioner alleges that vide judgment dated 31.7.1985 the respondents were convicted but ordered to be released on probation. The appeal filed by the respondents was rejected and respondents were directed to pay compensation to the petitioner. According to the petitioner, there were no visible marks of injuries on her person but she has been under constant treatment. According to her, her limbs have become useless and when towards the end of 1993 she went to the IGMC it was found that she was suffering from post traumatic stress disorder. She filed an application to sue in forma pauperis to recover compensation from the respondents on 21.7.1994 more than 10 years after the incident of beating had taken place. Originally this application was allowed. The respondents came up in Revision before this Court and the order of the learned trial Court was set-aside on the ground that no opportunity had been given to the respondents to cross examine the witnesses. After remand the learned Sub Judge came to the conclusion that though the husband of 3 the petitioner is in Government service, her son is an Advocate and her daughter is working in the police force, she is an indigent person as she has no independent source of income and there is no property in her name. This finding is not under challenge in these proceedings. However, the learned trial court also came to the conclusion that even as per the averments made in the application, the suit would be patently barred by limitation. The limitation prescribed for such a suit is 3 years and the limitation would start running from the date when the incident took place i.e. 20.2.1983. According to him the limitation expired on 20.2.1986 and the application filed in the year 1994 being not within limitation was bound to be rejected in terms of Order 33 (5)(f) of the CPC. Aggrieved by the order of the learned trial Court the petitioner filed an appeal before the learned District Judge, Shimla who rejected the appeal. Hence, the present Revision Petition. Sh.Vinay Thakur, learned counsel for the petitioner has strenuously argued that while dealing with an application under Order 33 the trial Court has no right or authority to go into the merits of the case and the finding on limitation is also a finding on merits. According to him once the petitioner 4 was held to be an indigent person, the application should have been allowed and only after trial, the trial Court should have decided the issue of limitation. On the other hand Sh.Romesh Verma, appearing on behalf of the respondents 1 to 3 submits that the language of Order XXXIII Rule 5 in fact casts a duty upon the Court to decide whether the application discloses a cause of action and whether the suit would be within limitation or not. Order XXXIII of the CPC relates to suits filed by indigent persons. Rejection of an application is contemplated under Rule 5 of Order XXXIII. For our purpose it is Sub Rule (f) of Rule 5 which is relevant. Order XXXIII Rule 5(f) reads as follows: “33(5):Rejection of application:- The Court shall reject an application for permission to sue as an indigent person:- (a) to (e) xxxxxxxxxx (f)where the allegations made by the application in the application show that the suit would be barred by any law for the time being in force..” It would be pertinent to mention that in terms of Rule 5(d) the Court is entitled to reject the application where the application does not disclose a cause of action. Similarly sub rules (e) and (g) provide that where the person filing the application has entered into an agreement with some other person with regard to any interest in relation to the 5 subject matter of the suit or where there is an agreement whereby some other party has agreed to finance the litigation the application can be rejected. The purpose of these provisions is that a person who is permitted to file legal proceedings without paying court fee must prima facie show that there is a cause of action for filing a suit; that the suit is not barred under any law; and that he is not filing the litigation on behalf of some other person. In case he cannot satisfy the Court on any of these counts his application can be rejected. Why should the Court embark on a long drawn out litigation in a case where court fee has not been paid and the allegations made in the application show that there is no cause of action or that the suit is apparently not within limitation? In Vijai Pratap Singh and others vs. Dukh Haran Nath Singh and another, AIR 1962 SC 941, the Apex Court while dealing with sub rule (d) held as follows: “By the express terms of O.33 R. cl. (d), the court is concerned to ascertain whether the allegations made in the petition show a cause of action. The court has 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 & the petition must be rejected. But in ascertaining whether the petition shows a cause of action the court does not enter upon a trial of 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 elaborate enquiry into doubtful or complicated questions of law or fact. If the allegations in the petition, prima facie, show a cause of action, the court cannot embark upon an enquiry 6 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.” The Apex Court held that the Court cannot go into the merits of the case. Relying upon these observations Sh.Vinay Thakur, submits that even the decision on limitation is a decision on the merits of the application. I am unable to accept his contention. Sub Rule (f) quoted hereinabove clearly lays down that an application under Order 33 shall be rejected where the allegations made by the applicant in the application show that the suit would be barred by any law being in force. In the present case admittedly the injuries were suffered by the petitioner on 20.2.1983. There is no dispute that this action would be governed by residuary Article 113 of the Limitation Act which prescribes a limitation of three years. The limitation starts running from the date when the right to sue accrues. The right to sue accrued in the year 1983 itself and the limitation of 3 years expired in 1986. Therefore, the learned trial Court was perfectly justified in holding that the application filed in the year 1994 was patently is not within limitation and barred under the provisions of the Limitation Act. 7 Sh.Vinay Thakur has made a feeble attempt to argue that the petitioner came to know about the resultant effect of the injuries only in the year 1993. Here we are dealing with a civil suit and once limitation starts running the only way limitation can be extended is in terms of the provisions of the Limitation Act. None of the grounds or circumstances as spelt out in part-III of the Limitation Act have been made out in this case. It is not a case of continuing cause of action. The suit would definitely be barred by limitation and therefore there is no error in the orders of both the Courts below. There is no merit in the petition which is rejected. No order as to costs. December 11, 2008 ( Deepak Gupta ),J. PV