In determining whether a suit is barred by law for the purpose of an application for leave to sue as a pauper under Order XXXIII, Rule 5, Civil Procedure Code, the court should confine itself to the allegations in the petition and not consider the allegations in the respondent's counter.

K. MADHAVA REDDY, J.

( 1 ) THIS appeal is directed against the rejection of a petition for leave to file a suit for partition and separate possession of a half share in the plaint schedule properties in forms pauperis.

( 2 ) THE learned Subordinate Judge, who enquired the in to the Original Petition, came to the conclusion that the appellant was not possessed of sufficient means but all the same rejected the petition on the ground that " the petitioner on his own allegations does not have a cause of action and her present suit is barred by the previous decision in O. S. No. 203 of 1963, District Munsifs Court, Guntur, as confirmed in appeal. "

( 3 ) THE suit is by the widow of a predeceased son of the Ist respondent herein for partition and separate possession of a half share in the plaint schedule properties. In the plaint it is alleged that the plaint schedule properties, were joint or joint family properties of her husband and the Ist respondent, and that they both constituted a Hindu undivided family and consequent on the death of her husband, she is entitled to a half share therein. She pleaded that she was not possessed of sufficient means to pay the court-fee. The defendant ( respondent ) denied that the allegation and also pleaded that in view of the decision in an earlier suit, O. S. No. 203 of 1963, the plaintiffs claim to a share in the plaint schedule properties was barred by the principle of res judicata. In that earlier suit the appellant had prayed for maintenance and for a charge on the present plaint schedule properties on the footing that they were joint family properties of her husband and the Ist respondent. One of the issues that fell for consideration in that suit was whether these properties were joint family properties and whether the plaintiffs husband was entitled to a share therein. The suit was decided against the present appellant after due enquiry and that finding was confirmed on appeal. In view of the above, the plea of res judicata was raised. This ground of objection found favour with the lower Court.

( 4 ) IT is argued by Sri P. Ramakrishna Raju, learned counsel for the appellant, that the learned Subordinate Judge erred in holding that the plaint did not disclose a cause of action or that the suit as framed appeared to be barred by any law for, if as alleged by the appellant her husband and the Ist respondent were members of a joint family and the plaint schedule properties were joint family properties, the appellant was surely entitled to maintain the present suit for partition and separate possession of her share of the properties. In the Original Petition there is no averment that there was any earlier suit in which the question whether the plaint schedule properties were joint family properties or not came up for consideration. The averments made in the petition disclose a cause of action and as there is no mention of any earlier proceedings there was no occasion for the Court to consider whether the present suit is barred by " res judicata. "

( 5 ) ORDER XXXIII, Rule 5, among others, lays down in clauses ( d ) and ( d-I ) that the Court shall reject an application for permission to sue as a pauper when the allegations do not show a cause of action or where the suit appears to be barred by any law. The allegations that are to be taken into account in deciding whether a cause of action is disclosed or not, are the allegations in the application for permission to sue as pauper. On a reading of the present petition, the gist of which is referred to above, it cannot be said that no cause of action is disclosed for if the appellants husband had a share in the suit property, she would clearly be entitled to a share and she would have a cause of action for filing the present suit for partition and separate possession.

( 6 ) IF that be so, what all the Court has to consider is, whether the allegations in the application for permission to sue as pauper disclose that the suit is barred by any law. It

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