1955 Supreme(AP) 256
Andhra Pradesh High Court
Madhura Krishnamurthy Sastn - Appellant
Versus
Yerra Ramamurthu - Respondent
Decided On : 10-21-55
The presentation of a plaint in the proper Court after it has been returned by a Court which has no jurisdiction to entertain it is a valid presentation.
Headnote:
CIVIL PROCEDURE CODE - ORDER 33, RULE 3 - PRESENTATION OF ORIGINAL PETITION FOR LEAVE TO SUE AS PAUPER - VALIDITY - PRESENTATION BY ADVOCATE - SUBSEQUENT PRESENTATION IN PROPER COURT - VALIDITY - LIMITATION ACT (IX OF 1908), SECTION 14 - BONA FIDE MISTAKE - BURDEN OF PROOF.
Fact of the Case:
The petitioner filed an original petition for leave to sue as a pauper in the District Court on the last day of limitation. The petition was registered as a suit and transferred to the Sub-Court. The Sub-Court, on an application by the respondent, returned the plaint for presentation to the proper Court, as the value of the suit was less than the pecuniary jurisdiction of the Sub-Court. The petitioner presented the plaint in the District Munsif's Court through his advocate. The District Munsif rejected the petition on the grounds that it was not presented in person by the petitioner and that the claim was barred by limitation as the petitioner could not invoke the aid of section 14 of the Limitation Act.
Finding of the Court:
The court held that the presentation of the plaint in the Munsif's court by the vakil was a valid presentation. The court also held that the petitioner had established the fact that he bona fide presented the petition in a wrong Court and that he could invoke the aid of section 14 of the Limitation Act for the purpose of saving his claim from the bar of limitation.
Issues: 1. Whether the presentation of the plaint in the Munsif's court by the vakil was a valid presentation? 2. Whether the petitioner could invoke the aid of section 14 of the Limitation Act for the purpose of saving his claim from the bar of limitation?
Ratio Decidendi: 1. The court held that the presentation of the plaint in the Munsif's court by the vakil was a valid presentation. The court relied on the decision in Papalhi Ammal v. Kamppiah Pillai, A. I. R. 1931 Mad. 418, where it was held that when a plaint validly returned by one Court is presented to another Court in pursuance of the order passed by the first Court, no objection can be taken to the validity of the presentation. 2. The court held that the petitioner had established the fact that he bona fide presented the petition in a wrong Court and that he could invoke the aid of section 14 of the Limitation Act for the purpose of saving his claim from the bar of limitation. The court relied on the decision in Gnanacharya Swamigal v. Saravana perumal, (1941) 1 M. L. J. 257 : I. L. R. (1941) Mad. 347 (F. B. ), where it was held that the burden of establishing bona fide under section 14 of the Limitation act is on the person seeking the benefit of that provision.
Final Decision: The court allowed the Civil Revision Petition and set aside the order of the District Munsif. The court directed that the Original Petition be registered as a suit and proceeded with.
( 1 ) THIS Civil Revision Petition is filed against the order of the learned district Munsif of Rajahmundry rejecting O. P. No. 2 of 1952 on his file under order 33, rule 5, Civil Procedure Code. This original petition was at first presented to the District Court, Rajahmundry, on 26th February, 1949, by the present petitioner. He sought thereby leave to sue as a pauper for partition of the plaint A and B schedule properties into three equal shares by metes and bounds and for recovery of his share. He attacked alienations of these properties made in favour of the respondents 1 to 20 by his father (the 21st respondent to the petition) as having been effected without any legal necessity or benefit for the family and therefore not binding on him and the 22nd respondent, who is the brother. The petitioner therefore claimed the recovery of his third share of the alienated properties. He stated that he had attained majority on 26th February, 1946. The original petition was actually presented on 26th February, 1949, i. e. , on the very last day of limitation. It was numbered as O. P. No. 36 of 1949 on the file of the District court. Theie was an enquiry held into the petitioner s pauperism and the petition was ultimately directed to be registered as suit (O. S. No. 15 of 1950) in forma pauperis. It was, however, transferred from the file of the District Court to the file of the Sub-Ccurt, Rajahmundry, on the file of which it was renumbered as O. S. No. 110 of 1950. The 18th respondent filed I. A. No. 630 of 1951 in the Sub-Court, rajahmundry, alleging that the properties in suit were over-valued and if they are properly valued, the suit would lie only in the District Munsif s Court having territorial jurisdiction. It may be noted that the plaint A schedule consists of lands which are acres 7-16 cents in extent, while B schedule consists of two items, (1) a house in Rajahmundry Municipality and (2) a site in a village in Rajole taluk. The 1st item of the B schedule was valued by the petitioner at Rs. 10,000 and all the other items together both of the A and B schedules were valued at Rs. 2,468. The petitioner s 1/3rd share therefore was put at Rs. 4,156 which was the value for the purpose both of Court-fee and jurisdiction. On the 18th respondent s application, an amin of the Court was appointed to investigate the value of item 1 of the B schedule and he assessed it at only Rs. 4,800. The result was that the value of the whole suit was reduced to Rs. 2,422-10-8, being the value of the petitioner s 1/3rd share in properties of a total value of Rs. 7,268. Consequently, the Sub-Court held that the proper Court having jurisdiction under section 15 of the Code of civil Procedure was the District Munsif s Court exercising jurisdiction locally and passed an order, dated 31st October, 1951, returning the plaint for presentation to the proper Court. It appears that the plaint was actually returned only on 14th november, 1951 and OP the same day it was presented to the District Munsif s court, Rajamundry, by the advocate who had appeared for the petitioner (plaintiff) in O. S. No. 110 of 1950. A fresh enquiry has since been made by the District munsif into the pauperism of the plaintiff and a finding has been recorded that he is a pauper. But, it was objected before the learned District Munsif by the 18th respondent that the proceeding ought to be treated as a fresh original petition for leave to sue as a pauper and as it was not presented by the petitioner himself as provided by the rules but by his advocate, the presentation was invalid. It was also urged that the original petition was liable to be rejected on the ground that the claim made therein was barred by time, as, in the circumstances of the case, section 14 of the Limitation Act could not be invoked by the petitioner for want of bona fides. The contention was that there was a deliberate over-valuation of the properties by the petitioner in order to make it appear that they were sold
Click Here to Read the rest of this document
Back
