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Kamalamma Vs. Venkataswamappa - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberCivil Petn. No. 26 of 1955
Judge
Reported inAIR1957Kant11; AIR1957Mys11; ILR1956KAR136
ActsCode of Civil Procedure (CPC), 1908 - Order 44, Rule 1; Limitation Act - Schedule - Articles 93, 142 and 144
AppellantKamalamma
RespondentVenkataswamappa
Appellant AdvocateE. Kanakasabhapathy, Adv.
Respondent AdvocateP.S. Devadas, Adv.
Excerpt:
.....unsuccessful patty files an appeal he can contend that the erroneous decision was reached by a misappreciation of evidence and that this he should be permitted to show by a perusal of the evidence recorded. the proviso to order 44, rule 1 of the code is mandatory and unless upon perusal of the application, the judgment and the decree appealed from the court is satisfied that the decree appealed from is contrary to law or otherwise erroneous or unjust it is bound to dismiss the application. i have perused the petition, judgment and decree appealed from and i am not satisfied that the decree is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust......respondent on her and dismissed the suit. it is to prefer an appeal against the said decision in forma pauperis that the present petition has been filed by the petitioner.3. it was urged by sri e. kanakasabhapathy, the learned counsel for the petitioner, that the findings of the learned district judge are the result of gross mis appreciation of the evidence on record; that there is very good evidence to come to the conclusion that it was on account of the fraud and undue influence practised by the respondent on the petitioner that she executed the sale deed dated 26-2-1951 in his favour.4. he also urged that the evidence 'on record further proved that the consideration amount for the sale deed dated 10-5-1947 was paid by the petitioner from out of the funds made over to her by her.....
Judgment:
ORDER

1. This is an application filed by the petitioner under Order 44, R.I, Civil P.O. for permission to file an appeal against the judgment and decree of the First Additional District Judge, Bangalore, in Order Section No. 112 of 1951-52, in forma pan-peris.

2. The petitioner was the plaintiff in the Court below and had sought for Cancellation of the sale deed dated 26-2-1951 executed by her in favour of the respondent and relating to the plaint schedule property on the ground that it was a false, fraudulent and nominal document, she had also sought for delivery of possession of the plaint schedule property from the respondent with mesne profits.

The respondent resisted the claim of the petitioner and contended among other things that he was the absolute owner of the property having purchased it from its previous owner for valuable consideration on 10-5-1947 but had got the sale deed nominally executed in the name of the petitioner, who was his wife & that the petitioner had subsequently willingly executed the deed dated 26-2-1951 which though was styled as a sale deed was really a deed of declaration of his title. He denied that he had practised any fraud or undue influence on the petitioner and secured the sale deed from the petitioner.

The learned District Judge held, on the evidence adduced by the parties, that it was the respondent that had paid the consideration and purchased the property from its previous owner on 10-5-1947 and the sale deed in the name of the petitioner was benami for the respondent. He held further that the petitioner had failed to establish that the sale deed dated 26-2-1951 executed in favour of the respondent was tainted with any fraud or was the result of undue influence practised by the respondent on her and dismissed the suit. It is to prefer an appeal against the said decision in forma pauperis that the present petition has been filed by the petitioner.

3. It was urged by Sri E. Kanakasabhapathy, the learned counsel for the petitioner, that the findings of the learned District Judge are the result of gross mis appreciation of the evidence on record; that there is very good evidence to come to the conclusion that it was on account of the fraud and undue influence practised by the respondent on the petitioner that she executed the sale deed dated 26-2-1951 in his favour.

4. He also urged that the evidence 'on record further proved that the consideration amount for the sale deed dated 10-5-1947 was paid by the petitioner from out of the funds made over to her by her father and that the financial position of the respondent was not sound enough on that date to enable him to pay such a large amount and purchase the property from out of his own funds.

It is conceded by the learned counsel for the petitioner that there is no substantial question of law or any question relating to the application of the article of Limitation Act involved in the case. But ho contends that erroneous findings of the lower Court based on gross misappreciation of the evidence are sufficient to grant permission to the petitioner to prefer an appeal against the judgment and decree. Here the matter is made clear to my mind by the proviso to Order 44, Rule 1, Civil P. C., which reads thus:

'Provided that the court shall reject the application unless, upon a perusal thereof and of. tlie judgment and decree appealed from, it sees reason to think that the decree is contrary to law or is otherwise erroneous Or unjust.'

Therefore in considering this application to prefer an appeal in forma pauperis this Court can only look into the application filed by the petitioner and the judgment and decree and on perusal of them1 if the Court comes to the conclusion that the decree of the lower Court is not contrary to law or is not otherwise erroneous or unjust, then the Court is bound to reject the application. The proviso to Order 44, R. 1, Civil P. C. extracted above gives the Court no option.

5. The learned advocate for the petitioner strongly relied upon a decision reported in In re Chennamma, AIR 1931 Mad 198 (A) in support of his contention that this Court can peruse the evidence on record to find out as to whether the conclusions arrived at by the learned District Judge are based on proper appreciation of the evidence adduced in the case.

Apart from the fact that the above decision was dissented from in a later decision of the Madras High Court reported in Narayana Rao v. Veerayya, 56 Mad 323: (AIR 1933 Mad 519) (B) and by this Court in a number of decisions, the facts disclose that the trial Court in that case had dismissed the plaintiff's suit holding that the claim was barred under Article 93, Limitation Act. The question for decision in that case was whether it was Article 93, Limitation Act as held by the Court below or Article 144 or Article 142 as contended by the appellant that was applicable to the case.

As a matter of fact the trial Court after discussing the question at great length and referring to various authorities had held that the decision in Narayanan Chetty v. Kannama Achi, 28 Mad 338 (C) though supported the plaintiff's contention had been impliedly overruled as a result of certain later cases of the Madras High Court. In those circumstances the High Court held the appeal raised a substantial question of law and permitted the petitioner to prefer an appeal in forma pauperis. The following observations of Venkatasubba Rao J. made this point abundantly clear:

'In other.words the appeal raises a substantial question of law and we cannot foretell what view the Bench disposing of the appeal may take alter hearing arguments on both sides. To decide the point at once would be to prejudice the appeal. It is unreasonable to hold that Order 44, Rule 1 compels us to adopt such a course....It is unnecessary in cur opinion that the Court should arrive at a definite and final conclusion.'

In the instant case there is no substantial question of law.

6. That the powers of an appellate Court in dealing with applications for permission to appeal in forma pauperis are circumscribed by the terms of the proviso to Rule 1, Order 44, Civil P. C. and the Court cannot look into anything more than the application itself and the judgment and the decree appealed from to see if the decree is contrary to law or is otherwise erroneous or unjust and cannot look into the evidence is the view that has been taken by this Court in several decisions.

Reference in this connection may be made to a case reported In re Siddamma, 9 Mys LJ 412 (D) wherein this Court held that the Court is bound to reject an application to appeal in forma pauperis unless upon perusal of the petition filed and of. the judgment and decree appealed from it sees reason to think that the decree is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust and that a ground that there has been a misappreciation of evidence by the Court below resulting in an erroneous and unjust decision is not one coming within the purview of the proviso to Order 44, Rule 1, Civil P. C. In re, Alathur Krishnappa, 11 Mys LJ 273 (E) after reviewing all the decisions of the several other High Courts this Court accepted the dictum laid in the case reported in 9 Mys LJ 412 (D) and quoted the following passage with approval:

'We cannot consider such a ground (mere mis-appreciation of evidence) as coming within the purview of the proviso as otherwise in every case where an unsuccessful patty files an appeal he can contend that the erroneous decision was reached by a misappreciation of evidence and that this he should be permitted to show by a perusal of the evidence recorded. In that case we would be invited not only to peruse the petitioner's application and the grounds, of appeal and the judgment and decree of the lower Court which the Code requires us to do but also the evidence which the Code does not require us to do.'

The Court ultimately rejected the application filed by the petitioner in that case.

7. Again in the case of Ameer Alikhan, 13 Mys LJ 192 (F) after discussing the several decisions of the several Indian High Courts and of this Court, it was held that this Court was entitled to peruse only the application, judgment and, decree to ascertain as to whether the decree of the lower Court was either contrary to law or other-wise erroneous or unjust and nothing more.

The words of the proviso to Order 44, Rule 1, Civil P. C. are such that the Legislature must have intended to put some limit on the Courts to grant permission to litigants to prefer appeals in forma pauperis. Reference in this connection may be made to a decision reported in In re Nanjappa Setty, 15 Mys LJ 90 (G) wherein it is observed as follows:

'The Code of Civil Procedure places a person who wishes to prefer an appeal in forma pauperis in an inferior position than an appellant who pays the court-fee. In cases of pauper appeals it may not be easy to compensate the successful party with costs to be paid by the pauper appellant. The proviso to Order 44, Rule 1 of the Code is mandatory and unless upon perusal of the application, the judgment and the decree appealed from the Court is satisfied that the decree appealed from is contrary to law or otherwise erroneous or unjust it is bound to dismiss the application.'

The petitioner in this case has. therefore, no right to ask this Court to go through the evidence adduced by the parties to find out as to whether the conclusions arrived at by the learned District Judge are due to misappreciation of the evidence or not. I have perused the petition, judgment and decree appealed from and I am not satisfied that the decree is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust.

As rightly observed in 11 Mys-LJ 273 (E) no injustice can result by such strict adherence to the terms of the proviso and consequent refusal of leave to appeal in forma pauperis, as it is open to an applicant to pay the court-fee and ask the Court to examine the entire records and to come to a conclusion. The special privileges conferred on a litigant by Order 44, Rule 1, Civil P. C. can be-availed of by him only subject to the specific conditions imposed in the proviso.

8. In my opinion there are no sufficient grounds to permit the petitioner to file the appeal in forma pauperis. This application is, therefore, dismissed. The petitioner is granted two months' time to pay necessary court-fee. No costs.

9. Application dismissed.


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