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Andhra Pradesh High Court
Kapala Sankar Rao - Appellant
Versus
Kapala Usharani - Respondent
Decided On : 08-13-05
Held : A conjoint reading of Section 96 (3) read with Order XXIII Rule 3a and Order xxxiii Rule 5 C P C , wouid show that in order to make an application under Order xxxiii Rule 1 C P C , the important condition to be satisfied is that there must be a cause of action, before levelling an allegation like that compromise decree obtained by fraud, as a condition precedent among the other conditions, which implies the consequential question of jurisdiction, since the aspects of cause of actiori and jurisdiction are inter-twined
No doubt, while deciding the question as to whether the plaintiff can be declared as an indigent person or not, the conditions referred to above, in normal course, are to be addressed first But, yet another important aspect born out of the record is that the O P filed under order XXXIII, Rule 1 of C P C had already been ordered without going into the aspect of jurisdiction As already noticed, the aspect of jurisdiction is a mixed question of fact and law to be normally decided in the suit only
The Court shall pass judgments addressing all the issues But, Clauses (a) and (b) of sub-rule (2) of Order XIV, Rule 2 C P C are in the nature of exceptions to the general principle laid down under sub-rule (1) of order XIV, Rule 2 C P C If we closely understood these submissions made by the learned Counsel appearing for the appellant, it appears that the submissions of the learned counsel would fall both under the category of Clauses (a) and (b) of sub-rule (2) of order XIV, Rule 2 C P C
( 1 ) THIS civil miscellaneous appeal is directed against the order dated 29-6-2002 passed by the judge, Family Court, Visakhapatnam, in o. P. No. 578 of 2001 filed by the respondent herein under Order XXXIII, Rule 1 of c. P. C. , wherein and whereby the Court below permitted the respondent to institute the suit as an indigent person.
( 2 ) THE O. P. was purportedly tor cancellation of decree of divorce dated 2-5-1990 in O. S no. 13 of 1989 on the file of the Subordinate judge, Berhampur, Orissa, allegedly obtained by fraudulent means and for maintenance,
( 3 ) THE genesis of the decree which is sought to be cancelled and the merits thereof are not relevant for the present to decide the issue involved in this appeal,
( 4 ) THE respondent is the plaintiff in the suit and petitioner in O. P. No. 578 of 2001. For convenience, parties are referred to as arrayed in the suit.
( 5 ) SRI T. Niranjan Reddy, the learned counsel appearing for the appellant, vehemently contends that the trial Court was in serious error in allowing the petition filed under Order XXXIII Rule 1 C. P. C for the reasons; firstly that sub-section (3) of section 96 C. P. C. , postulates that no appeal shall lie from a decree passed by the Court with the consent of parties. Hence, it is contended by the learned Counsel appearing for the appellant that since it is the specific averment of the plaintiff that the earlier decree, which was obtained by compromise, was by way of adopting fraudulent methods, but still since the said decree was by way of consent, such a decree is hit by subsection (3) of Section 96 C. P. C. , and secondly that Order XXXIII Rule 3a of c. P. C. barred the tiling of the suit to set aside a decree on the ground that the compromise on which the decree is based was not lawful.
( 6 ) FOR better appreciation and ready reference, Order XXIII Rule 3-A C. P. C. , is extracted below : "no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. "
( 7 ) FROM the above, it is clear that a suit shall not be instituted merely on the ground that the compromise, which is the basis for the decree, is unlawful.
( 8 ) IN this regard, a further reference has to be made to Order XXXIII, Rule 5 of c. P. C. , which deals with rejection of application seeking permission to sue as an indigent person, is extracted to the extent relevant as under : " (a ). . . . . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . . . . . (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 an indigent person; provided that no application shall be rejected if, even after the value of the property disposed of by the applicant is taken into account, the applicant would be entitled to sue as an indigent person, or (d) where his allegations do not show a cause of action, or (e ). . . . . . . . . . . . . . . . . . . (f ). . . . . . . . . . . . . . . . . . . . (g ). . . . . . . . . . . . . . . . . . . .
( 9 ) A conjoint reading of Section 96 (3) read with Order XXIII Rule 3a and Order xxxiii Rule 5 C. P. C. , wouid show that in order to make an application under Order xxxiii Rule 1 C. P. C. , the important condition to be satisfied is that there must be a cause of action, before levelling an allegation like that compromise decree obtained by fraud, as a condition precedent among the other conditions, which implies the consequential question of jurisdiction, since the aspects of cause of actiori and jurisdiction are inter-twined.
( 10 ) IT is not in dispute that in the instant case, it appears, there was a decree sought to be cancelled was obtained in a court of Orissa State by way of an alleged compromise. Therefore, since the plaintiff is residing in the State of Andhra Pradesh, she instituted the present suit on the ground that a consent decree was obtained by practis
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