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Ayipala Venkataraya Chetty Vs. Ayipala Ramachandriah Chetty and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. No. 204 of 1965
Judge
Reported inAIR1970AP411
ActsCode of Civil Procedure (CPC), 1908 - Order 33, Rules 5 and 6;
AppellantAyipala Venkataraya Chetty
RespondentAyipala Ramachandriah Chetty and ors.
Appellant AdvocateW.V.V. Sundara Rao, Adv.
Respondent AdvocateG. Venkatarama Sastry, Adv. for ;Soundararajan, Adv. and ;K.B. Krishna Murty, ;A. Venkatarama Reddy, ;B. Monohar, ;M. Ramachandra Reddy, ;and A. Rangacharyulu, Advs.
Excerpt:
property - scope of order - order 33 rule 5 and 6 of code of civil procedure, 1908 - appeal filed challenging correctness of order of trial court on ground that enquiry conducted was beyond scope of order 33 rule 6 - by amendment inserting sub-clause d-1 scope of enquiry under rule 6 enlarged - scope of enquiry and right to let in new evidence should be confined only to matters disclosed from allegation in plaint and not otherwise - held, enquiry conducted by lower court is beyond limits. - - ' in the above case, the supreme court was no doubt not considering a rule like the one as amended in madras. were based only on the provisions of rule 5 but not on the amended rule 6 whereas the ruling of the madras high court in air 1956 mad 271 (supra) placed strong reliance upon the language.....krishnarao, j.1. this appeal involves the determination of the scope and interpretation of o. 33, r 5 (d-1) and r. 6 civil p. c. as amended in madras and adopted in andhra pradesh. though the question raised was directly decided by a division bench of the andhra high court in venkatasubbaiah v. thirapathaiah, 1955 andh wr 261 == (air 1955 andhra 155) and followed in a subsequent division bench decision of the andhra pradesh high court, sri mnaohar, learned counsel appearing for one of the respondents in this appeal, challenged the correctness of the view taken by this court and contended that the view taken by this court requires reconsideration by a full bench in view of the decision of the madras high court dissenting from the view taken by the andhra high court. it has therefore,.....
Judgment:

Krishnarao, J.

1. This appeal involves the determination of the scope and interpretation of O. 33, R 5 (d-1) and R. 6 Civil P. C. as amended in Madras and adopted in Andhra Pradesh. Though the question raised was directly decided by a Division Bench of the Andhra High Court in Venkatasubbaiah v. Thirapathaiah, 1955 Andh WR 261 == (AIR 1955 Andhra 155) and followed in a subsequent Division Bench decision of the Andhra Pradesh High Court, Sri Mnaohar, learned counsel appearing for one of the respondents in this appeal, challenged the correctness of the view taken by this Court and contended that the view taken by this Court requires reconsideration by a Full Bench in view of the decision of the Madras High Court dissenting from the view taken by the Andhra High Court. It has therefore, become necessary to consider whether the view of this Court requires reconsideration.

2. The facts out of which the above Civil Miscellaneous Appeal arises are as follows: The appellant filed a suit O. P. No. 76 of 1960 in the Court of the Subordinate Judge, Chittoor for partition of the suit properties and for recovery of a share therein, with a prayer to permit him to sue as a pauper under O. 33, R. 1 Civil P. C. The plaint contains various allegations according to which the plaintiff claims a share in the suit properties. It was alleged inter alia in the plaint that there were attempts at partition which according to the plaintiff were either abortive or incomplete. The suit was contested by the various respondents stating that the suit was barred by limitation, that there was an actual registered deed of partition and that some of the defendants acquired title by adverse possession. the learned subordinate Judge framed tow points for consideration; (i) whether the petitioner is a pauper; and (ii) whether the petition is barred in law and if so, whether the petition is liable to be rejected. On the first point it was found that the plaintiff was a pauper and the said finding is not questioned before us. but on the second point, it was held that in view of a previous partition which was proved by the respondents, the plaintiff's suit should be dismissed. It was further held that the first respondent who was the manger of the plaintiff's branch was debarred form enforcing the partition and that the plaintiff was also precluded form claiming partition. In coming to the finding on the second point, the lower appellate court permitted the respondents to adduce documentary evidence to substantiate their allegations in defence, namely, that their was a prior completed partition, that the first respondent was the manger of the plaintiffs branch and that he lost his right to claim a partition. On behalf of the plaintiff he filed into court an extract shown is date of birth and another document. in addition to thus documentary evidence, oral evidence was also received on the question whether the plaintiff is entitled to any relief in the suit for partition. In view of the finding on the second question , the O. P. was rejected by the trial Court. Against the said order of rejection, which amounts to a rejection of the plaint, the plaintiff filed the above C. m. A. in this court, As the value of he suit is Rs. 84,000/- this appeal is posted before us for disposal.

3. The learned counsel for the appellant Sri W. V. V. Sundara Rao challenged the correctness of the order of the trial court on the ground that the enquiry conducted with respect to the second point for determination by the court below was beyond the scope of O. 33, R. 6 and that the said enquiry should be confined merely to the prohibitions set out in Rule 5 (d) or (d-1) which are founded only on the allegations contained in the plaint. In other words, his argument is that de hors the allegations in the plaint, the Court should not permit the defendant s to adduce evidence in support of their allegations which raise disputed questions of fact on the determination of which depends the plaintiff's right to obtain a decree in the suit. According to the earned counsel, the scope of the enquiry and the right of the defendants to let in evidence at this stage should be confined only to the matters disclosed form the allegations in the plaint and not otherwise.

4. Before considering the ruling touching this point, it is necessary to set out the relevant provisions of the Code of Civil Procedure which are as follows:---

Order 33, Rule 5: The court shall reject an application for permission to sue as a pauper--

(a) Where it not framed and presented in the manner prescribed by Rules 2 and 3 , or

(b) Where the applicant is not a pauper, or

(c) Where he has, within tow 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 a pauper, or

(d) Where his allegations do not show a cause of action, or

(d-1) (Madras, Andhra Pradesh and Kerala) where the suit appears to be barred by and law, or

(e) Where he has entered into any agreement with reference to the subject-matter of the proposed suit under which any other person has obtained an interest in such subject- matter.

Rule 6 (as amended in Madras , Andhra Pradesh and Kerala) Notice of day for inquiring into the applicant's right to sue as a pauper ---- Where the Court asses no reason to reject the application on any of the grounds stated in Rule 5, it shall 'nevertheless' fix a day (of which at least ten days' clear notice shall be given to the opposite party and to the Government Pleader) for receiving such evidence as the applicant may adduce to prove that the application is not subject to any of the prohibitions in Rule 5 and for hearing any evidence which may be adduced to the contrary.

The Allahabad High Court added the following explanation to Order 33, Rule 5,

Order 33, Rule 5:

'Explanation ---An application shall not be rejected under clause (d) merely o the ground that the proposed suit appears to be bared by any law.'

The above amendments were effected by the Madras High Court in 1923. The rules as amended were subsequently adopted by the Andhra and the Andhra Pradesh High Courts. It is obvious that the Kerala High Court also adopted the rules as amended by the parent High Court at Madras.

5. It will be noticed form the above rules that in addition to the newly added sub-clause (d-1), the scope of the enquiry under Rule 6 has been enlarged giving power to the Court to receive evidence not only in respect of the question of pauperism covered by sub-clause 9b0 of Rule 5 but also with respect to any of the other prohibitions contained in Rule 5. We will now referee to the decisions which have considered the scope of the above amendment.

6. In Mythil Ammal v. Mahadeva. AIR 1948 Mad 433. Satyanarayana Rao, J. Sitting single held that it would be open to the defendants to show that the suit is barred either by res judicata or by limitation and that accordingly they would be entitled to adduce evidence on the said questions. It does not however appear form a reading of the judgment what the allegations in the plaint were and whether the question of res judicata was raised for the first time by the defendants and whether the plea of limitation depends upon the determination of any disputed questions of fact requiring evidence. the judgment merely shows that the trial court was wrong in holding that the said question should be decided only with reference to the allegations in the plaint. the view of the trial Court was rejected and a direction was given to permit the defendants to adduce the necessary evidence. Except referring to the amended Rule, we do not find any discussion as to the scope of the Rule in the judgment of the learned Judge. This ruling was followed by the same learned Judge sitting single in Ponnuswami v. Alamelammal, Air 1949 Mad 591, in which it was observed that a court is not justified in shutting out evidence by the opposite party to show that the suit sought to be instituted in from a pauper is barred by limitation more than 12 years have in elapsed form the date of the alienation impugned in the suit. It is not possible to gather from the judgment whether the suit was barred on the very allegations in the paint, but the learned Judge is of the opinion that the defendant should be permitted to substantiate his defence plea of limitation by adducing evidence even in an enquiry under Order 33, C. P. C.

7. We will next refer to the judgment of a Division Bench of the Andhra High Court consisting of Subba Rao, C. J., and Bhimasankaram, J. , in 1955 Andh WR 261 = (AIR 1955 Andhra 155), a case arising out of a suit filed in from a pauper is for partition. In the plaint it was alleged that the alienation's were not supported by consideration and were not supported by any legal necessity or binding purpose. The trial Court made an elaborate enquiry and held that the petitioner had no cause of action with respect to certain items of property and accordingly dismissed the suit in so far as the suit related to those properties. On appeal before the High Court, the question was whether such an elaborate enquiry was contemplated under Order 33, Rule 6 as amended in Madras. After taking the history and the reasons for the amendment introducing sub-clause (d-1), Subba Rao, C. J. who delivered the judgment on behalf of the Division Bench observed that clauses (d) and (d-1) only indicate what has been the law all along. viz., that a court shall decide whether the petition discloses a subsisting cause of petition discloses a subsisting cause of action and though Rule 6 gives an opportunity to the defendants to adduce evidence, the evidence contemplated under the said rule is intended only to prove that the application is not subject to any of the prohibitions in Rule 5, meaning thereby such prohibitions in respect of which evidence is necessary for the petitioner to establish, that a particular prohibition does not affect his petition. In other words, it was pointed out that rule 6 as amended gives full effect to the intention of the framers namely to give an opportunity to the parties to adduce evidence only on the prohibition mentioned in Rule 5. the word 'appears' occurring in sub-clause (d-1) has been interpreted as confining the scope of the enquiry to something which is 'manifest' on the allegations in the plaint. The following observations continued in the judgment of Sinna Rao, C. J. may be usefully set out in this connection:

'If, on the other hand, the construction now sought to the put upon Madras Rule 6 by the learned counsel for the respondents in accepted, the distinction between a pauper petition and a suit disappears. Order 33 has been enacted to serve a treble purpose (i) to protect the bon fide claims of a pauper, (ii) to safeguard the interests of revenue, and (iii) to protect the defendant's right not to be harassed. By enabling the Court to prevent persons with property from suiting as paupers or third parties who acquire an interest in the claims of paupers form using the names of the paupers and to dismiss petitions which do not ex facie disclose a subsisting cause of action, the interests of bona fide paupers are safeguarded and defendants are protected from unnecessary harassment. The procedure proscribed also protects revenue, for an enquiry if it is found that the petitioner is not a pauper, he will have to pay court fee. On the other hand, if a Court should make an enquiry and decide on the evidence, even before the suit is numbered. Whether the petitioner has a subsisting cause of action, the entire suit should be heard before leave is granted . the words 'subsisting cause of action' will be comprehended the entire dispute between the parties the question whether the plaintiff has a right of the relief claimed whether the defendant has infringed that right and whether the suit claim is barred by limitation by res judicata or any other statutory law would have to be decided on the evidence. if the petition was dismissed on such an enquiry, the petitioner would have got a trial without payment of court-fee. If the petition was allowed on such an enquiry, the same questions should be decided again if the suit was numbered. There would be tow trials on the same evidence and perhaps two conflicting decisions and the Court's item would unnecessary be wasted. This could not have been the intention of the framers of Madras Rule 6 and we cannot attribute that intention to them.'

In this view, the Division Bench dissented form the view taken by Satyanarayana Rao, J., in his decision cited pure AIR 1948 Mad 433 and AIR 1949 Mad 591.

8. The next case to be considered in point of time is Anganna v. Angamuthu, Air 1956 Mad 271, in which Govinda Menon. J., delivering the judgment on behalf of the Division Bench consisting of himself and Basheer Ahmed Sayeed, J., dissented form the view expressed by Subba Rao, C.J. in the aforesaid case 1955 Andh WR 261 = (AIR 1955 Andhra 155) and held that the enquiry under the amended Rule 6 is not confined within the narrow limits pointed out by Subba Rao, C. J but that the said rule is intended to enable the opposite party to adduce any evidence to show that the suit is barred. As regards the word 'appears' in Rule 5, sub-clause (d-1), it was pointed out by Govinda Menon, J. that it merely connotes that no finality is attached to the decision at that stage and nothing more. In the case before them, the defence raised was one of limitation and it does not appear from the judgment whether the suit was barred on the basis of the mere allegations the plaint. Differing from the view expressed by Subba Rao, C. J. of the Andhra High Court, Govinda Menon J. followed the prior decision of Satyanarayana Rao. . J. sitting single which were dissented from by Subba Rao, C. J. In coming to this conclusion, Govinda Menon, J., relied upon certain extracts from the reports for the Rule Committee in connection with the amendment of Rule 6 to the following effect:

'The Committee are of the opinion that the safeguard provided in Rule 5 will not be effective if the enquiry were to proceed 'merely on the allegations in the plaint'. Therefore, they have made provisions by appropriate amendment to Rule 6 for enabling the defendant to assist the Court in determining the existence or otherwise of the prohibitions in Rule 5.'

Again a single Judge of the Madras High Court (Ramaswami, J.) in re, K. Annamalai Chettair, Air 1956 Mad 677, rendered subsequent to the decision of the Division Bench of Govinda Menon and Bahseer Ahmed Sayeed, JJ., suggested a via media curse without referring to the said Division Bench decision of the same Court. it was held by Ramaswami, J., that the court has the power to esquire at the initial stage of pauperism into a question of limitation allowing evidence to be adduced by both sides, that the scope of the enquiry is a matter within the discretion of the trial Judge and that such an enquiry should be limited within the ambit of the word 'appears' occurring in clause 9d-1) 'appears' meaning ' be visible' and ' be manifest' connoting something more than what is 'ex facie' patent and something less than discovery after deep delaying into the evidence in the case and that it is something betwixt and between the extremes and the line of demarcation will be dependent upon the circumstances of each case and the exercise of sound judicial discretion.

9. Coming back to the Andhra Pradesh High Court it was held in a decision of a single Judge (Jaganmohan Reddy, J., as he then was) in Md. Salamatulala v. Fazlur Rahman, : AIR1963AP51 , that irrespective of the question whether the issues involved are of a simple or complicated nature, the allegations in the plaint would determine the question whether a cause of action has arisen or not. the question as to scope of enquiry under Rule 6 did not however come up for decision in the said case. But it is significant to note that the allegations in the plaint are held to be the basis for ascertaining whether a plaint disclosed a cause of action or not.

10. Turning to the latest decision of a Division Bench of this Court consisting of Satyanarayana Raju. J. and Kumarayya, J. in Sri Anjaneya Dasu Ashramam v. Somsundaramma, (1966) 1 Andh WR 72 we find that the view expressed by Subba Rao, C. J. in 1955 Andh WR 261 = (AIR 1955 Andhra 155) is followed though no reference was made to the dissenting judgment of Govinda Menon, J. of the Madras High Court. In the case before the Divisions Bench, the trial Court permitted the defendants to adduce documentary evidence in support of the plea that the suit was barred by limitation. Kumarayya, J. delivering the judgment on behalf of the Division Bench held as follows:

' A prima facie case as to this base should be found on the averments in the petition itself and not on those in the counter which has to be proved at the trial. Though the words 'in the petition' are not specifically used in clause (d-1), the very fact that the penalty in Rule 5 of rejection is in relation to the application itself, it must necessarily follow that the suit should appear, form the application itself, to be barred by limitation. we have already noticed that notwithstanding the absence of the said words in clause (d) a Division Bench of this Court has considered the 'allegations' used in that sub-clause (d) to be allegations in the application itself.......We are therefore of the opinion that the penalty in Rule 5 would be attracted if the suit appears to be barred by any law on the averments in the petition itself. The tail court, therefore, went wrong in considering the counter or the documents in respect thereof.'

11. Finally, we wish to refer to a division of the Supreme Court in Vijai Pratap v. Dukh Haran Nath, : AIR1962SC941 , a case which went up from the Allahabad High Court in which considering the scope of Order 33, Rule 5(d) as it stood in the Civil procedure Code, it was held by Shah, J. who delivered the judgment on behalf of the court to the following effect:

'By the express terms of Order 33, Rule 5, Clause (d) the court is concerned to ascertain whether the allegations made in the petition show a causes of action. the court has not to see whether the claim made by the petitioner is likely succeed; it has merely to satisfy itself That the allegations made in the petition, if accepted as true, would entitle the petitioner to the relief he claims. If accepting those allegations as true no case is made out for granting relief no cause of action would be shown and the petition must be rejected. But in ascertaining whether the petition shows a cause of action the court does not enter upon a trial of the issues affecting the merits of the claim made by the petitioner. It cannot take into consideration the defences which the defendant may raise upon the merits; nor is the court competent to make an elaborate enquiry into doubtful or complicated questions of law or fact. If the allegations in the petitions, prima facie, show a cause of action, the court cannot embark upon an enquriy whether the allegations are true in fact, or whether the petitioner will succeed in the claims made by him. By the statute, the jurisdiction of the court is restricted to ascertaining whether on the allegations a cause of action is shown; the jurisdiction does not extend to trial of issues which must fairly be left for decisions at the hearing of the suit.'

In the above case, the Supreme Court was no doubt not considering a rule like the one as amended in Madras. But nevertheless, the principal underlying sub-clause (d) of Rule 5 has been authoritatively stated by the Supreme Court.

12. The views expressed in the above ruling may be summed up as follows:

According to this Court, the expression his allegation occurring in sub-clause (d) refers to the petitioner's allegations in the plaint. Sub-clause (d) under which the pauper petition is liable to be rejected if the allegations wherein do not show a cause of action is very wide in its scope while the cases contemplated by the amended sub-clause (d-1) namely the suit being barred by any law are only particular instances where the petition does not disclose a cause of action. Hence the amended sub-clause (d-1) should be read as referring also to the allegations in the petition. the enquiry contemplated under the amended Rule 6 is only confined in the prohibition contained in Rule 5 which have reference only to the allegation in the pauper petition and not de hors the said allegations. it is therefore not permissible to a court to permit an elaborate enquiry at the instance of the defendants on the basis of pleas raised by them in defence to the suit. According to the Madras High Court, one view is that the enquiry under the amended Rule 6 is not confined within the 'narrow' limits laid down by this Court but the defendants are permitted to adduce any evidence to show how the suit is barred. A third and intermediate view was taken in the Madras High Court according to which the limit of the enquiry lies in between the views expressed by this Court and the Division Bench of the Madras High Court and that the limit of enquiry is entirely in the discretion of the court. The scope of the enquiry under Rule 5 (d) without reference to the above amendment as laid down by the Supreme court is to the same effect as the view expressed by this Court as regards the amended rule.

13. On a consideration of the above decisions, we have no hesitation in following the view of this Court in 1955 Andh WR 261 = (AIR 1955 Andhra 155) as laying down the correct interpretation of the relevant rules and we are unable with due respect to accede tot he view expressed by Govinda Menon, J. in AIR 1956 Mad 271 or the view expressed by Ramaswami, J., in AIR 1956 Mad 677. We do not also agree with the comment of the learned counsel Shri Manohar that the conclusion arrived at by Subba Rao, C. J. were based only on the provisions of Rule 5 but not on the amended Rule 6 whereas the ruling of the Madras High Court in Air 1956 Mad 271 (supra) placed strong reliance upon the language of the amended Rule 6. On the other hand, on a scrutiny of the judgment of Subba Rao, C. J. we find that Rule 6 has been interpreted in so may terms with reference to the provisions of Rule 5 and we do not agree that the final conclusion was based solely on the provisions of Rule 5. We also find that Govinda Menon, J. while dissenting form the view of Subba Rao, C. J. did not make any reference to the various grounds and reasons which constituted the foundation for the conclusions arrived at by Subba Rao, C. J. We are also convinced that the test laid down by Ramaswami J. according to which the limits of the enquriy should be left to the discretion of the trial Judge is not a safe and proper guide.

Having regard to the various reasons given by Subba Rao, C. J. in 1955 Amdj WR 261 = (Air 1955 Andhra 155) with which we are in entire agreement, we are of the opinion that the view expressed therein is the only reasonable construction to be poached on the amended Rule 6 and if the contrary view expressed by the Division Bench of the Madras High Court is to be accepted, a trial Court has virtually to conduct a miniature trial of the whole suit and it may not be possible to put any stop or limit to the nature or quantum of evidence which the parties may desire to adduce. Turning to the instant case, we find that there was no allegation in the petition that there was a prior partition evidence by a registered document. It is not therefore open to the court to take evidence in support of the defence plea that there was a prior partition evidence by a registered document. Even if the petition did contain an allegation regarding a prior partition, it will be open to the plaintiff to say either that it was not acted upon or that there were valid grounds for reopening the same. hence the enquiry conducted by the lower court is beyond the limits of the view expressed by the Andhra High Court with which we are in entire agreement.

14. Before parting with his case, we wish to express our opinion as to the desirability of applying the amended Madras Rules 5 (d-1) and 6 in Andhra Pradesh. Taking the amended clause (d-1) we feel that the word 'appears' does not admit of a precise definition. it is explained as meaning 'manifest' or 'appearing on the face of. But it is equally difficult to determine the limits of what is apparent and what is not, the expression is as much inscrutable and elusive as the familiar expression' error apparent on the face of the record'. Sub-clause (d) of Rule 5 is indeed wide enough to cover cases where a suit may be rejected on the ground that it is barred by law.

The is, therefore, no real need to introduce sub-clause (d-1). The object of introducing an amendment to a rule is to clarify and ambiguity or lacuna in the existing rules. But unfortunately the amended Rules 5 (d-1) and 6, far from clarifying the existing Rule, tend to create confusion. In the first place, the amended Rule does not afford any guide as to how and on what material the bar of the suit should be determined. If the rule is intended to refer only of certain statutory bars which precluded the court from entertaining a suit and if such a question of to be decided solely on the allegations in the pauper petition, no difficulty rises.

The expression 'bar' connotes a bar on the court form entertaining the suit or against the person approaching the court for relief initially. But it is quite a different thing to say that on an adjudication of the disputes raised in the suit, the plaintiff is denied relief which he wants in the suit. In one sense it can be said that a plaintiff who fails to establish his case is precluded form getting any relief before the court. hence it is necessary to distinguish between a bar of the suit and the plaintiff filing to obtain a relief before the court on some other ground. The expression 'barred' used in rule (d-1) cannot, therefore be regard as referring to a case where a plaintiff is precluded from obtaining relief if he fails on the merits of this claim. Instances of bar of a suit can be easily visualised such as (i) where the jurisdiction of a civil court is specifically ousted by the statutory provision like the Andhra Tenancy Act. Rent Control Act, Sales Tax Act, etc., and (ii) provisions in the C.P.C. like Section 11, Order 2, Rule 2, Order 9, Rule 9. Order 23, Rule 1(3) etc. If the petition does not disclose any facts even assuring that the same are intentionally suppressed, he court will not be in a position to reject the petition on the ground Thai it is barred by law. In such cases, it is not desirable at the initial stage to permit the defendants to adduce evidence in respect of their pleas raised in defence in order to establish a bar to the suit. If it is possible to reject the petitions as barred by law on a mere reading of the petition, there should be no objection to the court doing so either on hearing the petitioner alone or non hearing the respondent if such assistance is required. In such cases the enquiry will be confined only to questions of law. But if the petition discloses facts which relate to a plea of bar of suit and the petitioner nevertheless explains how the suit is not barred, in such cases, the defendants may be permitted to adduce evidence to the limited extent touching the allegations in the petition to show that the petition is really barred.

To take an example, the petitioner alleges that there was an adjudication in a prior suit but that it does not operate as res judicata. In such a case, the defendant may produce the judgment or the pleading in the prior suit and satisfy the court that the suit is barred by res judicata. Similarly where a petition alleges that there was a prior suit and that the cause of action in the subsequent suit is different, it will be open to the defendant to place before the court the pleadings in the previous suit and establish that the suit is barred under Order 2, Rule 2, C.P.C. In all other cases, where a plaintiff is precluded form filing a suit by virtue of any express provisions of statute, there will be no difficulty in deciding the question. But where the defence is that the suit is barred by limitation, several complicated questions arise, for a plea of limitation is sometimes based upon disputed questions of fact. If on a reading of the allegations in the petitions it is possible to hold that the suit is barred, it will be always open to the court to reject the same. But in case where evidence may have to be taken in order to decide the question of limitation, the case presents some difficulty. Even accepting the limited view taken by Subba Rao, C.J. in 1955 Andh SR 261 = (AIR 1955 Andhra 155), it may not be possible in practice to prescribe any limits for the enquiry which has to be conducted. To illustrate this difficulty, let us take the case of a suit for money brought on the basis of a promissory note where the plaintiff relies upon certain acknowledgments or payments as saving the suit form the bar of limitation, the only defence raised being a denial of the truth of the endorsements or acknowledgments. If the plaintiff-petitioner may have to adduce evidence of a hand-writing expert and if the defendant is naturally given the liberty to adduce rebutting evidence, the whole trial will be over even before the suit is registered.

To take another example, in a suit for ejectment, the plaint alleges that there was trespass on the part of the defendant on a date within 12 years of the suit. If the allegations in the plaint are to be taken as the basis, there was no bar of limitation. But if the defendant is permitted to adduce any evidence to rebut the allegations in the plant, the court may have to take evidence of both parties on the question of possession both oral and documentary on which the court has to give a finding whether the plaintiff was in possession within 12 years of the suit, as required by Article 142 of the Limitation Act. In such a case also, the suit is completely disposed of even before it is registered. It is needless to multiply the illustrations as it is not our purpose and it is also not possible to attempt at a fixation of the limits of the inquiry contemplated by Rule 6 or the ambit of the expression 'appears to be barred' in sub-rule (d-1). So for as sub-rule (d-1) is concerned, it may be deleted and it will be sufficient to amend (d) as follows:

'where the allegations in the petition show that the suit is barred by law, or do not show a cause of action.'

But as regards Rule 6 as amended, we have no hesitation in suggesting that the amended Rule should be deleted so far as we are concerned, that is to say, the enquiry should be confined only to the question of pauperism as contemplated by Rule 6 of the C. P. C. as it stands, thereby avoiding an enquiry whether prima facie or regular as regards the other prohibitions contained in Rule 5. In this connection, it May be noted that the ruling of the Supreme court cited supra emphases the need to link to the plaint allegations alone at the stage of an enquriy under Order 33, C.P.C.. we therefore suggest that in order to avoid confusion and uncertainty it is necessary and desirable that Rule 6 as amended (Madras) should be deleted so far as Andhra Pradesh is concerned.

15. For the above reasons, we set aside the order of the lower curt including the findings therein and direct the Court below to register the petition as a plaint and proceed to dispose of the assume according to law. As the petition is already nine years old by now, we direct the lower court to dispose of the same as expeditiously as possible. The appellant is entitled to his costs throughout.

Parathasarathi, J

16. I agree with the reasoning and conclusions of my learned brother. the question raised in this appeal relates to a rule of practice, and it cannot be gainsaid that it should be expressed in the Code of Procedure in such language as would tend to certainty and uniformity in its application. If the provisions in the Code, as they stood before the Rules 5 and 6 were amended, had produced a baffling diversity or conflict, the amendments have, by no means helped the evolution of a better rule: on the other hand, confusion has become worse confounded, and it has become necessary to recast the rules or revert to the unamended rules.

17. The expression 'barred by any law' is to unambiguous in its import and is not capable of easy or precise application. Does it connote only a legal impediment in the form of an objection like a plea of limitation or res judicata? Or, is it to be extended to other cases of which an example may be given? Supposing the suit is for recovery of possession of property in a case where a statute has prohibited the alienation in question except as a prior sanction of prescribed authority, and such sanction is not alleged to have been obtained by the suitor. does the application in such as case come within the expression 'barred by laws'? instances of this nature can be multiplied. the question is, what is the category or type of impediment that is contemplated by the expression 'barred by law'.

18. The word 'appears' in clause (d-1) has been productive of conflicting decisions. It is a word with multiple shades of meaning and the context in which it occurs does not limit its import in any manner. Rule (d-1) has been introduced by the Madras amendment, because it was considered that clause (d) of the Code in its unamended form was inadequate. It is open to question whether the clause (d) in the unamended form is not sufficient to eliminate vexatious or harassing actions by paupers. Is not the expression 'does not disclose a cause of action' of sufficient amplitude to protect the interests of defendants? It must be remembered that the provisions of Order 33 are designed to enable indigent suitors with a grievance to seek legal redress. The legislative intendment is not to shut out a bona fide litigant by a too meticulous or deep probe at the outset into the merits of the case. That is why the clause (d) of the Code provides that 'his allegation' i.e., the averments made by the pauper petitioner should be subjected to a test to ascertain whether they disclose a cause of action. In other words, if a tribal claim emerges form the avertmens of the petitioner and there is no manifest hurdle under law to the trial of that claim, the pauper is given a change by the legislature to invoke the Court's aid. That being the basic objective of the legislature, would it be consistent with it to amend the rule so as to make it incumbent on him to overcome a preliminary skirmish, the result of which should be to show that there is no bar to the action under law? This, it should be remembered, is only the first round and a second contest at the regular trial is inescapable. Does it stand to reason and is it consistent with justice that the indigent suitor should be put to the expense of two trials, the one preliminary and the other more elaborate? It is, therefore, necessary to re-examine the position whether clause (d-1) is to be retained, especially because in the majority of the States there is no such rule and the absence of such a rule does to seem to have occasioned hardship. Nor has it promoted unhealthy litigation as far as one could judge the result.

19. It might be said that the effect of clause (d-1) is not to enlarge the scope of inquiry very mush beyond the limits indicated by clause (d) in the unamended from. If clause (d-1) does not contemplate widening of the limit of enquiry, and it is intended to cover the same filed as clause (d), it is obvious that there is no need for a superfluous provision which, in actual practice, has contributed to a good deal of uncertainty and conflict of judicial opinion. On the other hand, if it is accepted that clause (d-1) is intended to enlarge the filed of inquiry, it is obvious that to do so is not consistent with the provision of clause (d) and is also not consistent with the legislative policy and intendment. The position, therefore, is that clause (d-1) must be regarded as superfluous if it covert the same filed and must be said to be inconsistent with the provisions of clause (d) if the intention is to enlarge substantially the area of conflict at the initial stage.

20. Rule 6 has been amended so as to provide for the Court receiving evidence that May be adduced by the applicant to prove that his application is not subject to any of the prohibitions in Rule 5 and also for evidence in rebuttal thereof. With reference to the Prohibitions in Rule 5 other than those mentioned in clauses (d) and (d-1), there arises no difficulty. When the case of pauperism pleaded by a petitioner is challenged, or when it is shown that he has fraudulently disposed of property or has entered into an agreement in the manner prohibited by clause (e), it is necessary to have an inquiry into the matter; and if at such inquiry both the parties are allowed to lead evidence, the adjudication relates to matters which are not germane to the merits of the case. It is only with reference to the prohibition in clauses (d) and (d-1) that difficulty arises. It would be desirable to specify in Rule 6 that the evidence adduced by the petitioner or the rebuttal evidence adduced by the respondent should be limited to matters contained in Rule 5 with the exception of clauses (d) and (d-1). Even if the retention of clause (d-1) in the present form is considered necessary, the alternative of limiting the inquiry as to the prohibitions under Rule 5 to cases other than those covered by clauses (d) and (d-1) should be considered. It is, therefore, necessary to consider whether Rule 6 should not be recast in such a manner as to exclude form its scope inquiry into the matters covered by clauses (d) and (d-1) of Rule 5.

21. Appeal allowed.


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