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Hanamappa Bhimappa and ors. Vs. Pralhad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 246 of 1970
Judge
Reported inAIR1972Kant335; AIR1972Mys335
ActsCode of Civil Procedure (CPC), 1908 - Sections 49 and 149 - Order 6, Rule 17 - Order 33, Rules 1, 5, 8 and 15; Limitation Act, 1963 - Sections 3
AppellantHanamappa Bhimappa and ors.
RespondentPralhad
Advocates:M. Rama Bhat, Adv.
DispositionAppeal dismissed
Excerpt:
.....case, the power exercised by the tribunal under section 254(2) of the act results in reviewing the entire earlier order by reconsidering its earlier findings which is not the scope of 254(2) of the act. hence, impugned order was set aside. - on 31-1-1963 the application to sue as a pauper came to be dismissed, without any specific order as to rejection of the plaint or as to the time within which the plaintiff was required to make good the court-fee payable in the suit. i fail to see how that could alter the nature of the cause of action so as to give the claim the colour of a fresh claim. it is, therefore, clear that the contention based on limitation has to fail. in such a situation i fail to see as to how the court was prevented from exercising the power under section 149. civil p......the plaintiff reduced his claim to rs. 750/- by amending his plaint on 17-1-1964 (2) whether the suit claim is also in time because the plaint was registered on 16-3-1963? (3) whether the plaintiff is entitled to prosecute the suit as he has not as for paid the costs incurred by the government and by the opposite party in opposing his application for leave to sue as pauper ?' 4. on all the above issues thelearned civil judge held against the appellant. hence this appeal. 5. sri s. c. javali. the learned counsel appearing in support of the appeal urged the following contentions:-- (1) that the suit was barred by time for two reasons: (a) the amendment of the plaint has altered the cause of action and, therefore, time commences to run only from the date of such amendment; (b) the suit.....
Judgment:

B. Venkataswami, J.

1. This is a defendant's appeal. It is directed against the judgment and decree made by the Civil Judge. Hubli. in Civil Appeal No. 179 of 1966. which affirmed the judgment and decree made bv the Additional Munsiff and Judicial Magistrate First Class. Haveri. In L. C. Suit No. 58 of 1963.

2. The facts giving rise to this appeal, so far as they are material, are as follows:--

The suit for the recovery of a rent of Rs. 4,137-6-0 was filed by the respondent in forma pauperis on 29-9-1959 by way of a composite document containing both the plaint and the application under Order 33, Rule 1, Civil P. C. On 31-1-1963 the application to sue as a pauper came to be dismissed, without any specific order as to rejection of the plaint or as to the time within which the plaintiff was required to make good the court-fee payable in the suit. Subsequently, time was granted to pay the court-fee end the same was extended from time to time on the basis of certain applications filed, which arc Exhibits 2 to 4. The extension of time was presumably made under Section 149. Civil P. C. The respondent ultimately reduced his claim to Rs. 760/- by an amendment of the plaint and paid the requisite court-fee thereon on 16-3-1963. The suit was thereafter registered as L. C. Suit No. 58/63. After the issues were settled the case was set down for hearing on 8-8-1966, on which date the defendant was placed ex parte. The suit was thereafter continued and decreed.

3. On the basis of the further pleas by the defendant, the following additional issues came to be settled, and they were numbered as issues 4, 5 and 6. The other issues related principally to the plea of discharge which was held not to have been proved by the appellant mainly on account of the fact that the appellant had been placed ex parte. Since much of the argument both before this Court and the lower appellate Court has a bearing on the findings on issues 4 to 6 it would be necessary to set them out. They are:--

'(1) Whether the plaintiff's claim for the suit years is barred by time as the plaintiff reduced his claim to Rs. 750/- by amending his plaint on 17-1-1964

(2) Whether the suit claim is also in time because the plaint was registered on 16-3-1963?

(3) Whether the plaintiff is entitled to prosecute the suit as he has not as for paid the costs incurred by the Government and by the opposite party in opposing his application for leave to sue as pauper ?'

4. On all the above issues thelearned Civil Judge held against the appellant. Hence this appeal.

5. Sri S. C. Javali. the learned Counsel appearing in support of the appeal urged the following contentions:--

(1) That the suit was barred by time for two reasons: (a) the amendment of the plaint has altered the cause of action and, therefore, time commences to run only from the date of such amendment; (b) the suit must in reality be deemed to have been instituted on the date the court-fee was paid thereon

(2) that the court had no power to extend the time under Section 149. Civil P. C. after the dismissal of the application to sue in forma pauperis;

(3) that as per the provisions of Order 33. Rule 15 the, plaint could not have been entertained without the plaintiff satisfying the condition precedent enjoined therein regarding the payment of costs of the defendant in an application under Order 33. Rule 1; and

(4) that the appellant has not had sufficient opportunity to adduce evidence inasmuch as although he was placed ex parte in the first instance was later on permitted to participate in the proceedings as could be gathered from the Order sheet of the trial Court.

6. It is to be mentioned that the first three contentions alone were pressed before the lower appellate Court and there is no reference whatsoever to the last contention in the judgment under appeal. It is convenient to dispose of the latter contention first. It is seen from the judgment of the trial Court that in regard to issues 4 to 6 aforementioned the counsel on behalf of the present appellant has been heard and it is nowhere to be gathered therefrom that he had made a grievance regarding any want of opportunity as is contended for before this Court. It is also to be seen that no such grievance has been made of this fact even before the lower appellate Court. It seems to me that the appellant had pinned his faith on the questions of law posed by issues 4 to 6. In these circumstances, the appellant cannot be allowed to urge this aspect of the case for the first time before this Court. It is accordingly rejected.

7. I shall now revert to the first contention relating to limitation. The first branch of the argument is based on the fact of amendment of the claim by reducing the quantum claimed earlier. I fail to see how that could alter the nature of the cause of action so as to give the claim the colour of a fresh claim. It is to be remembered that the suit was for recovery of rent for certain number of years. It may be that the rent falling due in respect of each of the years may independently give rise to a cause of action in respect of each of those years. If the suit is filed in respect of the dues regarding several years and it is subsequently limited only to some of such years, it cannot at all be said that it is a fresh claim made for the first time on the date of such amendment. Hence this contention has to be rejected.

8. The second facet of the above argument is based on the fact of the late payment of court-fee. According to the appellant once the application under Rule 1 of Order 33 was dismissed, any payment of court-fee subsequently on the plaint proper would not have the effect of relating back such plaint to the date of the institution of such plaint in forma Pauperis. This argument is unacceptable in view of the decision of this Court in Ramappa Parappa Khot v. Gourawwa, (1968-1 Mys LJ 277) = (AIR 1968 Mys 270). One of the questions that arose for consideration in that case was 'whether an application for permission to sue as a pauper commences a suit'. This court after noticing the case law pointing to a divergence of opinion, and following the decision of the Supreme Court in Vijai Pratap Singh v. Dukh Haran Nath Singh. : AIR1962SC941 and of the Privy Council in Stuart Skinner v. William Orde. ( (1878) 6 Ind App 126) held that it was 'more reasonable to say that a suit commences when an application is presented for permission to sue as a pauper and there is no postponement of the acquisition of the status of a suit until the admission of that application under Rule 8 of Order XXXIII'. This principle is in my opinion, cannot be different in the case of dismissal of an application preferred under Rule 1 of Order 33. Civil P. C. It is, therefore, clear that the contention based on limitation has to fail.

9. The next contention relates to the exercise of jurisdiction under Section 149, Civil P. C. after the application under Rule 1, of Order 33, Civil P. C. has been rejected. The argument is that the court should have exercised this power contemporaneously with the passing of such order of dismissal. It is to be remembered that no order of rejection of the plaint had been made by the Court while rejecting the application for permission to sue as pauper. That being so the plaint in question must be treated as subsisting. In such a situation I fail to see as to how the court was prevented from exercising the power under Section 149. Civil P. C.

The position may perhaps be different if the plaint had been rejected and a fresh suit was sought to be instituted as in the case of Mahadev Gopal Savant v. Bhikaji Vishram Chavan. (AIR 1943 Bom 292) on which reliance was placed on behalf of the appellant in support of the first contention earlier referred to. It is exactly for this reason that the said case was held to be distinguishable by the trial Court, with which conclusion I see no reason to differ. In any event, no authority was cited in support of the present contention. I, therefore, hold that there is no substance in this contention also.

10. The only remaining contention is based on the fact that costs incurred were not paid or tendered in compliance with the requirement of Rule 15 of Order 33; Civil P. C. It seems to me to be plain from the language of the said Rule that such a condition is required to be fulfilled only when a suit in the ordinary manner is instituted by a plaintiff after a rejection of his application to sue as a pauper. In the instant case the plaint had not been rejected and time had been granted to pay the court-fee before the plaint could be registered as a suit. In these circumstances, there is no question of a fresh suit having been instituted. Hence, Rule 15 of Order 33, Civil P. C. is not attracted at all. This view of mine is supported by a decision of the High Court of Allahabad in Bir Ram v. Lachmi Rai. : AIR1937All781 . Hence this contention also fails.

11. In the result, this appeal fails and is dismissed with costs.


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