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Bolisetti Venkatarathanamma (Died) by Lrs. Vs. Nadakuduti Venkateswara Rao and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Contract
CourtAndhra Pradesh High Court
Decided On
Case NumberAS No. 538 of 1992 and TR AS No. 416 of 1993
Judge
Reported in1999(1)ALD422
ActsEvidence Act, 1872 - Sections 3 and 45; Specific Relief Act, 1963 - Sections 16; Code of Civil Procedure (CPC), 1908 - Order 33, Rules 3, 5, 7 and 15-A; Transfer of Property Act, 1882 - Sections 106
AppellantBolisetti Venkatarathanamma (Died) by Lrs.
RespondentNadakuduti Venkateswara Rao and ors.
Appellant Advocate Mr. N.V. Ramanujam, Adv.
Respondent Advocate Mr. T. Veerabhadrayya, Adv.
Excerpt:
civil - specific performance - sections 3 and 45 of evidence act, 1872, section 16 of specific relief act, 1963 and order 33 rule 15-a of code of civil procedure, 1908 - suit for specific performance of sale agreement - suit filed on very last day of limitation - certain sale consideration paid - plaintiff willing to pay balance of sale consideration - permission of court obtained court fee paid after obtaining permission - rule 15-a to be applied - held, suit not barred by limitation. - - on the other hand, the learned counsel for the respondent submits that the opinion of the expert has no value, firstly for the reason that the expert has not given the reasons in his testimony for his opinion and secondly the evidence itself is of weak character. law is well settled that the.....order1. both the appeals arise against the common order passed in os no. 42 of 1987 and os no.46 of 1987 on the file of trie subordinate judge, tcnali. these appeals are therefore taken up for disposal togelher. as no.538 of 1992 arises against the order in os no.42 of 1987 which is a suit for specific performance filed by the respondent and os no.46 of 1987 against which transfer appeal no.416 of 1993 arises was filed for recovery of possession of the suil premises from the respondent.as no.538 of 1992:this appeal is brought by the defendant who is the owner of the suit premises of an extent of 400 sq. yards with two attached sheds in repalle municipality. the respondent filed the suit for specific performance of the agreement of sale dated 21-1-1981 ex.al. under the said agreement the.....
Judgment:
ORDER

1. Both the appeals arise against the common order passed in OS No. 42 of 1987 and OS No.46 of 1987 on the file of trie Subordinate Judge, Tcnali. These appeals are therefore taken up for disposal togelher. AS No.538 of 1992 arises against the order in OS No.42 of 1987 which is a suit for specific performance filed by the respondent and OS No.46 of 1987 against which transfer appeal No.416 of 1993 arises was filed for recovery of possession of the suil premises from the respondent.

AS No.538 of 1992:

This appeal is brought by the defendant who is the owner of the suit premises of an extent of 400 Sq. yards with two attached sheds in Repalle Municipality. The respondent filed the suit for specific performance of the agreement of sale dated 21-1-1981 Ex.Al. Under the said agreement the suit premises was agreed to be sold for a consideration of Rs.26,000/- to be paid within one month. At the time of agreement of Rs.20,000/- was paid as advance and the balance of Rs.6,000/- was agreed to be paid within one month and in case of default it should carry interest at the rate of 18% per annum. The respondent who was is possession of the suit premises as tenant continued to be in possession. It is the case of the respondent that in view of the disputes pending between the parties which arise mainly as the respondent has not paid rentals, mediators brought about the settlement between them and according to the said settlement the suit agreement was brought into existence but the appellants filed OS No.163 of 1981 on the file of the District Munsif Court, Repalle, seeking among other, the relief of eviction. OS No.163 of 1981 was renumbered as OS No.46 of 1987 against which transfer AS No.416 of 1993 arise and the respondent has been contesting the said suit. The respondent has been ready and willing to perform his part of the contract but the appellants are avoiding the same and when a notice was issued to the appellants,they gave reply with false allegations denying the execution of the suit agreement. Hence the suit. It is the case of the appellants-defendants as disclosed in the written statement that the suit agreement was never executed by them, it was a forged document, it was brought into existence by the active assistance of the scribe and the attestors. They have also denied the alleged settlement and stated that the respondent is liable to pay huge amounts from 21-10-1981. It is their specific case that the respondent has no capacity to have paid the advance amount of Rs.20,000/- under the suit agreement, that the suit was filed as counter-blast to the suit filed by the appellants.

2. hi the above pleadings, the following issues were framed:

1. Whether the plaintiff is entitled for specific performance of the suit contract or in the alternative whether he is entitled for recovery of the suit amount with future interest as prayed for;

2. Whether the suit contract is true and genuine and binding upon the defendants; and

3. To what relief.

Tr. AS No. 416 of 1993:

A suit was originally instituted in OS No.163 of 1981 on the file of the District Munsif Court at Repalle. It is a suit for possession of the plaint schedule properly and for recovery of Rs.2,873.75 ps. with subsequent interest and for future profits. It was filed by the appellants-plaintiffs alleging that the respondent who was inducted into possession as tenant in 1975 on a rental of Rs.50/- per month paid rent only for the month of March, 1976 and thereafter he defaulted. The appellants filed RCC No.6 of 1976 for eviction and the same was dismissed on the ground that the Rent Control Act has no application. The appellants father died during the pendency of the said petition and the appellants succeeded to the property oftheir father and issued statutory notice under Section 106 of Transfer of Property Act terminating the tenancy and requested the respondent to vacate the premises, but no reply was given by him, hence the tenancy came to an end. The respondent filed OS No.129 of 1977 on the file of the District Munsif Court at Repalle on the basis of pronote executed by the father of the appellants for Rs.4,000/- which was decreed and the Court directed the appellants to appropriate the amount towards rent payable by the respondent. But the amount was sufficient for eight months and rest of the amount was payable by the respondent. Hence the suit. In the written statement, it is averred that the allegation of paying rent only for the month of March 1976 and committed default thereafter was denied. It was stated that the close relative of the appellants brought about mediation between the parties and the appellants agreed to sell the suit property for an amount of Rs.26,000/-. An amount of Rs.20,000/- was paid as advance and one month time was granted for paying the balance of Rs.6,000/-. However, due to difficult circumstances the respondent could not pay the balance of the sale consideration but the appellants fraudulently filed the suit suppressing the sale agreement, hence the suit was liable to be dismissed.

3. In the above pleadings the following issues were framed:

1. Whether the plaintiffs are entitled for recovery of possession of the schedule property from the defendant;

2. Whether the plaintiffs are entitled for the amount towards rent; and

3. To what relief.

4. PWs.l to 5 were examined and the first plaintiff was examined as PW1 on behalf of the plaintiffs and DWI to DW4 were examined by the defendant and marked several documents.

5. Considering the evidence on record, the Court below decreed OS No.46 of 1987and the appellants were directed to execute sale-deed in respect of suit schedule property subject to the respondent depositing Rs.6,000/- with 18% interest per annum thereon from 21-1-1981 within one month from the date of the judgment, and on such deposit, the appellants were directed to execute the sale-deed in favour of the respondent in respect of the suit schedule property. In view of the finding on issues 1 and 2 in OS No.42 of 1987, the plaintiffs in OS No.46 of 1987 are not entitled for recovery of tlic plaint schedule property and the same was dismissed.

6, Having heard the learned Counsel on either side, the following points arise for consideration:

1. Whether the suit agreement is not true;

2. Whether the respondent was not ready and wilting to perform his part of the contract and whether the respondent was not entitled for the relief of specific performance; and

3. Whether the suit is barred by limitation?

7. The crucial question in these appeals is whether the suit agreement is true or not. Learned Counsel for the appellants submits that the suit agreement could not have been executed by the appellants in view of the surrounding circumstances of the case. He also brought to my notice several other factors in support of his contention that the suit agreement was a forged document and was not executed by the appellants. Learned Counsel for the respondent refuted this submission and contends that there are no material circumstances to hold that the suit agreement was not executed by the appellants in view of the fact that the respondent was in possession of the suit property since 1975 and the appellants were not able to get only rents, but also possession from very long time and that the appellants might thought of settling the matter and dispose of the property in favour of the respondent and in view ofthis circumstance, the settlement has been arrived at and the agreement of sale was executed by the appellants.

8. Let us now examine the rival contentions:

It is the admitted case that on 1-3-1976, the respondent was inducted into possession of the suit property tinder Ex.B1 - lease agreement dated 25-2-1976 and he paid rent only for one month. Promptly, the appellants filed eviction petition in the Court of the Rent Controller, but it was dismissed on 27-9-1980 on the ground of jurisdiction. On 15-12-1980, Ex.B6 notice was issued under Section 106 of the Transfer of Property Act seeking eviction of the respondent. Around 11-1-1981 it is stated that the settlement talks took place and the alleged suit agreement is stated to have been executed on 21-1-1981 under Ex. A1. The appellants filed OS No. 163 of 1981 on 24-2-1981 seeking eviction of the respondent and the same was renumbered as OS No.46 of 1987. After about two years, on 14-1-1984, Ex.B23 notice was issued on behalf of the respondent and he filed the present suit OS No.42 of 1987 for specific performance of the contract. These are the important events in this case.

9. Let us now consider, whether it was likely for the appellants to have executed Ex.Al on 21-1-1981. It should be kept in mind that the appellants reside at Sajjanvaripallem whereas the respondent resides at Repalle which is about more than five miles away. The respondent has been enjoying the property since 1976 as a tenant. The appellants father died prior to the execution of Ex.A 1. The present appellants arc the wife and sons. Pending appeal in this Court the wife also died as her L.Rs., appellants 2 and 3 are brought on record. It is therefore, obvious that even after about six years the applicants could not either receive the rents or possession of the suit property. After the death of the appellants father, the appellants and their deceased mother must have thought that it might be difficult to getthe rents or recover possession from the respondent. By that time, their pelition for rents was also dismissed. It is true that they had intended to file a suit in the Civil Court for eviction. As the things stand at that, the respondents filed a suit OS No.129 of 1977 for adjustment of the rents and the same was also decreed against the appellants. In this background, a common friend PW5 approached for talks of settlement. Is it improbable to think in those circumstances, for the appellants to have agreed for a mediation and sort out the disputes with the respondent? During those talks when a suggestion of disposing of the property in favour of the respondent, is it unlikely for the appellants not to have agreed for the same? 1 am of the view that the appellants who had been fighting with the respondent for six years and having lost possession and enjoyment of the profits definitely might have agreed for the same atleast in order to buy peace and to have substantial money in their hands. Unless there is sufficient malerial to hold that this document has been brought into existence by forgery, it is difficult to hold that Ex.A1 was not genuine.

Inadequate Sale Consideration: The consideration for the sale viz., Rs.26,000/- is also stated to be a ground to hold that Ex.A1 is not true. In support of this contention, the learned Counsel for the appellants filed Ex.B25 - the certificate of the market value, where it is shown as Rs.110/- per Sq. yard in the year 1981 which works out to Rs.44,000/-as the market value of the suit plot. But, it should be noticed that D2 himself has offered to sell the property at Rs.30,000/- which is also much less than the alleged market value. On appreciating this aspect, it should be remembered that the properly of the appellants has been in the hands of the respondent from 1975 and the appellants could not even get Rs.50/- towards the rents, let alone the recovery of his property and on top of the above the suit filed by the appellants stood dismissed. In a settlement, one willnot get the true price of his property. He has to necessarily under-sell the property so as to sort out the disputes. It can also be visualised that no other person may have come forward to purchase the property as it is not a property which the appellants would deliver to the intending purchaser. It is in the hands of the respondent for about more than six years.

10. The learned Counsel has also emphasised upon another aspect viz., that though the agreement was mentioned in the written statement filed in OS No. 163 of 1981 on the file of the District Munsif, Repalle, the suit filed by the appellants for eviction, the agreement itself was not filed alongwith written statement. It is therefore contended that on that date, the agreement was not in existence. The agreement is dated 21-1-1981 and the appellants instituted the suit OS No. 163 of 1981 on 24-2-1981. It is now numbered as OS No.46 of 1987. 1 am of the view that the mention of the suit agreement itself in the written statement is a circumstance that goes a long way to prove the truth of Ex.Al. The respondent may not have filed the agreement as his Counsel may have advised not to file the same alongwith the written statement, as it was not a material document in that case as the suit was filed for eviction.

11. It is further submitted by the learned Counsel for the appellants that by the evidence of PV3 having been found to be untrustworthy by the learned Judge to in OSNo.54 of 1986 in his judgment dated 1-10-1991, the learned Judge erred to believing the said witness in this case. CMP No.4664 of 1998 is filed in this appeal to treat the judgment in OS No.54 of 1986 on the file of the learned Judge dated 11-10-1991 as additional evidence in this appeal. First let me dispose of the question whether the above Judgment can be admitted as additional evidence in the appeal.

CMP No.4664 of 1998 : In the affidavit filed alongwith CMP, no reason was assignedwhy the judgment was not filed during the trial Court or before the judgment was rendered in this suit. The judgment under appeal was rendered on 10-2-1992 and the judgment sought to be admitted as additional evidence is rendered on 11-10-1991. The above judgment was therefore available with the appellants. No reasons are assigned for not filing it. It should be noticed that a witness should be believed or disbelieved with reference to the evidence that was brought on record and not with reference to the evidence in another case. It is held in Chandreshwar Prasad Narain Sutgh v. Bishweslnvar Pratap Narain Singli, AIR 1 927 Patna 61, that the opinion of the Court upon the character of a person is not admissible in evidence for the reason that there is no material for judging whether he was rightly disbelieved or wrongly disbelieved. The question whether a witness is entitled to credit or not, must be decided by the Court on the evidence before it and not on what another Court thought of the witness in another case. I am also of the view that the additional evidence is not necessary for the proper disposal of this appeal. The CMP is therefore dismissed.

Forged Document:

The agreement is alleged to be a forged document. In order to support his plea, the document was sent for the opinion of the handwriting expert and it was opined that the signatures of the respondent is not genuine. The expert was examined on commission and he was treated as PW1. He was, however, not cross-examined. The learned Counsel for the appellants, therefore contends, relying upon the expert's opinion, the agreement should be held as forged document. On the other hand, the learned Counsel for the respondent submits that the opinion of the expert has no value, firstly for the reason that the expert has not given the reasons in his testimony for his opinion and secondly the evidence itself is of weak character. Let us now look into the evidence of DW1. He has stated about his experience as handwritingexpert, his qualifications, the receiving of the disputed signatures and the signatures which are admitted together with signatures of the appellants. On comparison, with the disputed signatures, he opined that the disputed signatures were not genuine, he filed the report Ex.C44. Finally, he says that the reasons are given in Ex.C44. Thus, we find the handwriting expert has not stated in his deposition the reasons which prompted them to give his opinion that the signatures of the appellants were not genuine. Law is well settled that the expert's opinion with respect to the handwriting must always be received with great caution. In the presence of the evidence of witnesses who had actually seen the signing of the document by the testatrix, it is not necessary to refer to or rely upon the expert's opinion. Strong reliance is placed upon Re, Venkata Row, ILR 36 Madras 159, wherein it is observed that 'the evidence of the genuineness of the signature based upon the comparison of hand-writing and of the opinion of experts is entitled to proper consideration and weight. It must be confessed, however, that it is of the lowest order of evidence or of the most unsatisfactory character. We believe that in this opinion experienced laymen unite with the members of the legal profession. Of all kinds of evidence admitted in a Court this is the most unsatisfactory'.

12. It is further held as under:

'There certainly may be, and perhaps are cases where the handwriting expert's opinion may be of assistance to the Court in coming to a conclusion as to the genuineness of disputed handwriting. But it must be remembered that the art of forming opinion by comparison of handwriting is essentially empirical in character, and error is seldom inseparable from such opinions. In any case, where there is direct and trustworthy evidence of persons who had actually seen the signing of the document by the testatrix.'

13. In Bhagwan Knur v. Shri Maharaj Krishan Sharma ami others, : 1973CriLJ1143 , it is observed that :

'The evidence of a handwriting expert, unlike that of a fingerprint expert, is generally of a frail character and its fallibilities have been quite often noticed. The Courts should, therefore, be wary to give too much weight to the evidence of handwriting expert. In Kishore Chand v. Ganesh Prasad, : [1954]1SCR919 , this Court observed that conclusions based upon mere comparison of handwriting must at best be indecisive and yield to the positive evidence in the case.'

14. Further the opinion of the expert is admissible if it is accompanied with reasons. The report itself is not a substantive evidence. It is only corroborative piece of evidence and in the absence of substantial evidence, the corroborative evidence has no value. In State (Delhi Administration) v. Pali Ram, : 1979CriLJ17 , it was clearly laid down that the real function of the expert is to put before the Court all the material together with reasons which included him to come to the opinion by his own observation of the material.

15. In the circumstances, the evidence of DW1 which is bereft of reasons in support of his opinion cannot be relied upon.

16. It is next seriously contended by the learned Counsel for the appellants that the respondent has no capacity to have paid Rs.20,000/- under the agreement. It is the case of the respondent that he sold his sawmill to PW4 two days prior to Ex.A1. PW4 supported this aspect of the matter. Ex. A3 was filed to show that he got delivery of the saw-mill on 16-1-1981. The learned Counsel for the appellants submits that the saw-mill, which is an immovable property, was sold, registered documents should have been executed and it is not produced. Hence Ex.A3 cannot be relied upon. We are not concernedabout the validity of the transfer under Ex.A3. Ex.A3 docs not show that the property was transferred under it. It is only a letter given by PW4 to show that saw-mill has been delivered to him. The plaintiff relies on the proceedings of the Municipal Commissioner, Repalle dated 18-1-1980 granting permission to the respondent to install the saw-mill which is marked as Ex.A21. Ex.A22 and Ex.A23 are the plans of the saw-mill. Next, he relied upon the show-cause notice issued by the Inspector of Factories, Tenali to the plaintiff on 31-8-1979 which is marked as Ex.A24 and the inspection report of the Inspector of Factories is marked as Ex.A25. All these documents read alongwith the evidence of the respondent-plaintiff and PW4 would go to show that the respondent sold the sawmill to PW4 and realised Rs.8,000/-, thus disproving the allegation that the respondent had no capacity to pay the amount of Rs.20,000/- on the date of the agreement.

17. It is next contended by the learned Counsel for the appellants that there are no good reasons for disposing of the saw-mill as he also owns a Timber Depot. We are not here to decide whether the respondent was wise enough to sell the saw-mill instead of Ins lands. It may be a foolish decision, but still in view of the evidence as discussed supra, which goes to show that the saw-mill was sold, the case of the respondent has to be accepted.

18. It is now to be seen whether the evidence let in the case is sufficient to prove the execution of Ex.A1. The plaintiff examined himself as PW1 and the scribe as PW3, PW2 and PW5 as attestors. PW4 was examined to show that the saw-mill has been sold to him by PW1. The defendants examined DW1 - the handwriting expert, DWs. 2 fo 4 arc defendants in the case. It is the case of PW1 - the plaintiff, that PW5 who was distantly related to both the parties, prevailed upon him to settle the disputes between the appellants and the respondent and on his initiative, the amount due to theappellants was also ascertained at Rs.2,000/-lowards the balance of the rent and the defendants agreed to dispose of their property and transaction was finalised at Rs.26,000/-. Accordingly, he has taken time to pay the advance and after disposing of the sawmill for Rs.18,000/-, he paid Rs.20,000/- on 21-1-1981 to the appellants and the appellants executed Ex.A1 - sale agreemenl in the presence of PWs.2 and 5, which was written by PW3. in support of the title of the appellants, the appellants gave the copies of the registered partition deed, the Will, copy of the Will executed by their father Bapanaiah which are marked as Ex.A4 and A5. PWs.2 and 5 - the attestors and PW3, the scribe have supported the case of the respondent. I have already discussed the evidence of the handwriting expert and discarded the same. The scribe of the document PW3, appears to be an independent person, who does not belong to the village. He conies from another village. He was found in the Sub-Registrar's office. At the request of the respondent, he came over and wrote the document. It has come in the evidence that he has been a document writer for several years. Nothing is brought out !o discredit the evidence of PWs.2 and 5. The evidence of PWs.1 to 5 is consistent and reliable. No material discrepancies or contradictions are brought out in their evidence. The learned Judge has also given cogent reasons while accepting their evidence. Law is well settled that the appellate Court should be too slow in disturbing the findings of fact as recorded by the trial Court. I have therefore no manner of doubt to hold that the evidence adduced on behalf of the plaintiff is unimpeachable and there is no warrant to interfere the finding of the Court below as to the truth of the agreement.

19. An argument was advanced that as the fact of filing the suit informa pauperis would only go to show that the respondent was not ready and willing to perform his part of the contract in paying the remaining sale consideration of Rs.6,000/-. I do not agree.It should be noted that the agreement gives a right to respondent to pay the balance with interest if the amount is not paid within one month. It is therefore for the respondent either to pay the entire amount of Rs.6,000/- within one month and get the sale-deed or if he does not have the balance of Rs.6,000/- within the period of one month, he could pay the same alongwith interest before the expiry of the agreement period. He need not pay the amount within one month, he can wait till just prior to the expiry of three years. But he should pay the same, of course alongwith interest, on the last day. It is, however, stated in the plaint that the respondent-plaintiff has made ready the balance of consideration under the suit contract. He made demands upon the appellants to execute the sale-deed. But the appellants were not in a mood to discharge their obligation. It is also specifically averred that the respondent was always ready and willing to discharge the part of the obligations by making balance of the contributions and it was the appellants alone that were not ready to execute the sale-deed. The plaintiff was examined as PW1 and he stated that the balance of sale consideration was ready and when he met the second defendant that the money was ready, he said that his mother was not available and after her return the sale-deed would be executed. As the appellants denied execution of the agreement, no evidence was adduced on their side on this aspect. Hence, there is no material on record contra to the evidence adduced by the respondent to disprove the case.

20. It is true that if the respondent, without paying the Court fee of Rs.1626/-, filed the suit as an indigent person. Does it follow that he was not ready and willing to pay Rs.6,000/- the balance of the sate consideration. It may be true as observed in Mar Pratap Singh and another v. Satya Narain Misra and another, : AIR1980All52 , that 'a person who is incapable of performing, the essential term of a contract to be performed, howsoever much he maysay that he is ready and willing to perform it, the suit must, in this view of the matter, fail.....' In the above case, we find that hecould not pay the Court fee amount of Rs.957.50 ps. till the date of the decree of the Court and the plaintiffs in the above case were allowed to continue to prosecute the case as Informa Pauperis whereas in the present case the respondent paid the Court fee in 1995 when the OP, was taken up for enquiry. The learned Counsel for the respondent submits that the respondent could not have procured the necessary funds for paying Court fee on the date when the suit was filed and he could not afford to wait till the next day since the suit was filed on the last day and unless the suit is filed, the agreement becomes unenforceable as the period of three years expires. In those circumstances, me respondent might have been advised, in order to save the situation, to file the suit as an indigent person. It may be true that the respondent must have placed himself due to the play of circumstances. As it was found that the respondent though ready to pay the amount of Rs.6,000/- the appellants were not, on their part to execute the sale-deed, respondent might have thought to wait till the expiry of three years. In fact as the respondent was not coming forward, he issued Ex.B3-suit notice and filed the suit on the last day of limitation. Suddenly, on that day, he could not get the amount. In order to save limitation, he had to file the suit informapauperis. Few days thereafter, after the enquiry was commenced in the OP, he filed an application to pay the Court fee. The Court gave the permission and accordingly the respondent paid the Court fee.

21. In S. Indira and another v. Netyam Venkataramana and others, 1996 (3) ALD 548, wherein it was held that 'merely because the plaintiff had no money for the brief period, it cannot be said that the plaintiff has failed to perform his part of the contract.' The learned Judges have relied upon Surya Narain Upadhyaya v. Ram Roop Pandey, : AIR1994SC105 , wherein it was held that payment of inadequate Court-fee does not necessarily indicate that the plaintiff was not ready and willing to perform his part of the contract. On the same analogy, it cannot be said that the respondent was not ready to pay the balance of consideration, merely because he could not procure the Court fee on the day when he filed the suit.

22. For the same reasons as above, the contention that the relief of specific performance should be rejected on the ground that the respondent, in filing the suit informa pauperis, gave false information, is also not tenable. The application filed by the respondent to pay the Court fee was allowed by the Court. It should be presumed that the Court found good reasons for doing so. It cannot therefore be urged that the respondent gave false information to the Court in omitting to show all the items of property of the respondent in the 'B' schedule annexed to the OP. Thus there are no merits in the contentions.

23. The last contention that is advanced by the learned Counsel for the appellants is that the suit is barred by limitation. It is the contention of the learned Counsel that the petition filed for informa pauperis does not fall within the eventualities that are contemplated under Rule 15-A of Order XXXIII of Civil Procedure Code. Hence, the deeming provision regarding the date of filing the suit would not be applicable and it should be held that the suit was filed only on 2-7-1986, on which date the permission to pay Court fee was granted, by which time the suit was admittedly barred by limitation. There is no force in the said contention. Rule 15-A reads as follows:

'Section 15-A - Grant of lime for payment of Court fee.:

Nothing contained in Rule 5, Rule 7 or Rule 15 shall prevent a Court, under Rule 7, from granting time to the applicant to pay the requisite Court-fee within suchtime as may be fixed by the Court or extended by it from time to time; and upon such payment and on payment of the costs referred to in Rule 15 within that time, the suit shall be deemed to have been instituted on the date on which the application for permission to sue as an indigent person was presented.'

Rule 15-A is a deeming provision. As per a legal fiction, the suit will be deemed to have been instituted on the date on which the application for permission to sue as an indigent person was presented. Rule 3 deals with the presentation of the application for permission to sue. Rule 5 provides for rejection of the application and the grounds thereof, before the enquiry and to pass an order either allowing or refusing to allow the application. Rule 15-A is in two limbs, which is evident from the 'semi-colon' between the two limbs. First limb deals with the power of the Court to grant time to pay the Court fee within the lime fixed by the Court or extended time. It further clarifies in clear terms that the rejection of the application either under Rule 5 or Rule 7 would not prevent the Court from granting time to pay the Court fee. The second limb deals with the legal fiction as per which, upon the payment of Court fee and costs, the suit is deemed to have been instituted on the date when the application was presented. The condition precedent to invoke this Rule is payment of Court fee within the time allowed by the Court. The contention of the learned Counsel thereof is misconceived. The two eventualities, namely the rejection of the application under Rule 5 or Rule 7 are only slated in the Rule to clarify that even in such cases also, the Court has got power to grant time to pay the Court fee. It cannot therefore be contended that as the application of the respondent was not rejected under Rule 5 or Rule 7, the fiction could not be made applicable. In fact, the amendment to Rule 15-A was brought in the year 1976. In view of the decision rendered in Jugal Kishore v. Dhanna Devi (died) by LRs., : 1973CriLJ1769 , in order to set at rest the conflicting decision on this point of various High Courts, the Supreme Court observed as under:

'There is nothing in Order 33 Civil Procedure Code which prevents an applicant from telling the Court that though he had prayed for permission to sue in forma pattperis, he is now in possession of funds and would like to pay the Court fee on the application treating it as a plaint. Thereby, in effect, the applicant withdraws his prayer for permission to sue as a pauper and requests the Court not to apply the provisions of Order 33 to him'

24. In the instant case, the respondent paid the Court fee pending enquiry in the petition in accordance with the orders passed by the lower Court. The suit was therefore numbered as regular suit. Thus the suit is deemed to have been instituted on the date on which the application for permission to sue as an indigent person was presented. Admittedly, the petition was filed within the period of limitation and in view of Rule 15-A, it shall be deemed that the petition was filed within the period of limitation. Thus, the suit is within time.

25. In view of my above finding as to the genuineness of the sate agreement, the appellants are not entitled to recover the plaint schedule property from the respondent as claimed in OS No.46 of 1987, as the respondent is in possession of the same in pursuance of the sale agreement which is held to be true and are also not entitled for the refund of the amount.

26. In view of the foregoing discussion, both the appeals fail and are accordingly dismissed. In the circumstances, 1 order no costs.


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