Skip to content


Sri A.C. Agrawal Vs. Union of India (Uoi) and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 5 of 1958
Judge
Reported inAIR1962All436
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rule 1 - Order 33, Rule 5
AppellantSri A.C. Agrawal
RespondentUnion of India (Uoi) and anr.
Appellant AdvocateRaja Ram Agrawal, Adv.
Respondent AdvocateS.N. Kacker, Adv.
DispositionRevision dismissed
Excerpt:
.....of property by applicant - purchaser not a necessary party - no effect.  - - the learned civil judge did not hold any enquiry about the sale being fraudulent or actuated by the bad motive mentioned in rule 5(c) and did not hold that it was such a fraudulent sale. the distinction between a fraudulent sale and a fictitious sale is well-known; the result of his findings in these miscellaneous proceedings, is to condemn those two transactions in the absence of the parties who are principally affected by them, that is, the donee under the gift and the beneficiary under the waqf. there is a principle of natural justice that no person should be condemned unheard but the learned civil judge did not pass any order adversely affecting the applicant's son-in-law's interest in the house by.....m.c. desai c.j. 1. this is an application by a plaintiff for revision of an order of the civil judge, bulandshahr, dismissing his application to sue as a pauper under order xxxiii, rule 1, c. p. c. the application came up for hearing before upadhya, j. who being of the view that certain observations made by a bench of this court in mohd. baksh v. khair-un-nisa, 1944 all lj 366 required reconsideration referred the case to a bench.2. the facts, about which there is no dispute, in this case are that on 19-12-1956 the applicant sold his house, which was his only property, to his son-in-law and on 22-4-1957 filed an application to sue the union of india as a pauper. his application was opposed by the district government counsel, who also represented the union of india. the learned civil judge.....
Judgment:

M.C. Desai C.J.

1. This is an application by a plaintiff for revision of an order of the Civil Judge, Bulandshahr, dismissing his application to sue as a pauper under Order XXXIII, Rule 1, C. P. C. The application came up for hearing before Upadhya, J. who being of the view that certain observations made by a Bench of this Court in Mohd. Baksh v. Khair-un-nisa, 1944 All LJ 366 required reconsideration referred the case to a Bench.

2. The facts, about which there is no dispute, in this case are that on 19-12-1956 the applicant sold his house, which was his only property, to his son-in-law and on 22-4-1957 filed an application to sue the Union of India as a pauper. His application was opposed by the District Government Counsel, who also represented the Union of India. The learned Civil Judge made an enquiry into the alleged pauperism on July 20, 1957, discovered that in the schedule of property the applicant had not mentioned a sum of Rs. 50/- deposited by him and his wife jointly in a certain bank and gave him time to amend the schedule. The schedule was amended within the time allowed but the District Government Counsel made an application for permission to produce evidence to challenge the sale of 19-12-1956 as fictitious. The learned Civil Judge made an enquiry into the fictitious nature of the sale and holding that it was fictitious decided that the applicant was possessed of sufficient means to pay the court fee. It is not in dispute that if be was deemed to be still owning the house he would have sufficient means to pay the court fee payable on the plaint.

3. It was vehemently contended before us that the enquiry into the fictitious nature of the sale was barred by the provision contained in Order XXXIII, Rule 5 (c). That provision is to the effect that the court shall reject an application for permission to sue as a pauper where the applicant has:

'within two 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.'

It was argued that since the alleged sale was made more than two months before the presentation of the application for permission to sue as a pauper the court could not embark upon an enquiry into the allegation that it was a fictitious sale. The argument is irrelevant; the application was rejected not on the ground that the applicant disposed of the house, fraudulently or in order to be able to sue as a pauper but on the ground that the alleged sale was in effect no sale at all and that the remained the owner of the house and thereby possessed of sufficient means to pay the court fee. The two grounds on which the petition could be rejected are distinct from each other and if one ground did not apply it cannot be said that the application could not be dismissed even if the other ground applied. The learned Civil Judge did not hold any enquiry about the sale being fraudulent or actuated by the bad motive mentioned in Rule 5(c) and did not hold that it was such a fraudulent sale. His finding that there was in reality no sale at all is quite a different finding.

The distinction between a fraudulent sale and a fictitious sale is well-known; a fraudulent sale exists though it can be avoided, whereas a fictitious sale does not exist at all. What was alleged by the District Government Counsel to this case was that the applicant did not sell his house at all to his son-in-law on 19-12-1956 and only made a pretence of doing so. The sale was not attacked as fraudulent or as having been made with an intention to be able to sue as a pauper subsequently. Therefore, it was wholly irrelevant to consider whether the alleged sale was made within two months next before the presentation of the application or not. There is no similar time limit prescribed for an enquiry whether the sale was made at all or not as in the present case. That enquiry is in fact an enquiry into the means of the applicant; the court is bound by Rule 5 (b) to reject an application on finding that the applicant was not a pauper. There would have been no difficulty in this case but for certain observations made by Plowden and Sinha, JJ. in the case of Muhammad Baksh, 1944 AH LJ 366 (Supra). There the trial court had ignored a gift and a waqf executed by the applicant wishing to sue as a pauper and treated the subject matters of the two deeds as his property. The learned Judges setting aside his judgment observed at page 367 :

'There is another important feature of the case which has perhaps escaped the notice of of the learned Civil Judge. His finding that the gift and the waqf were fictitious transactions will transgress a very salutary provision of law. Every transaction must be held to be real unless the contrary is established. The result of his findings in these miscellaneous proceedings, is to condemn those two transactions in the absence of the parties who are principally affected by them, that is, the donee under the gift and the beneficiary under the waqf. It is one of the axioms of law that nothing should be done to the detriment of a party behind his back. We think in disregarding this salutary principle the learned Judge exceeded his jurisdiction. We are therefore, of opinion that the learned Civil Judge has not followed the correct procedure in deciding the question of pauperism.'

We are aware of no law that the allegations made by a party unless contradicted should be accepted by the court. Courts, always disbelieve even uncontradicted allegations if they find them to be improbable of belief. Moreover an allegation can be contradicted not only directly but also by adverse circumstances. The learned Judges have not referred to any statutory provision or any authority in support of the proposition contained in the above observations. There is no presumption that what a man says is true and we cannot say that the learned Judges meant that if a person says that he has transferred his property to another he must be presumed to have spoken the truth and the property must be taken as having been transferred by him to the other person. We are happily not called upon to explain what else was meant by the learned Judges when they observed that every transaction must be held, to be real unless the contrary is established. Moreover the presumption, if there is any, would only raise the question of onus of proof; if there is such a presumption the onus would lie upon the District Government Counsel to prove that there was really no sale and if there is no such presumption, the onus would lie upon the applicant to prove that there was really a sale and that it was acted upon. In the case before us no question of onus has been, raised and the learned Civil Judge's decision is not assailed on the ground that he placed the onus wrongly upon the applicant. We find ourselves quite unable to agree with the learned Judges that an enquiry into the alleged fictitious nature of the sale could not be made by the learned Civil Judge behind the buck of the applicant's son-in-law.

There is a principle of natural justice that no person should be condemned unheard but the learned Civil Judge did not pass any Order adversely affecting the applicant's son-in-law's interest in the house by his finding that the house belonged to the applicant. The finding is undoubtedly against the applicant's son-in-law but he is not bound by it and this title is not at all affected by it. If he is in fact the owner of the house he is free to remain so and to do all acts of ownership in respect of it regardless of the finding in the enquiry under Rule 5 (b). It was the duty of the learned Civil Judge to enquire into the means of the applicant and to this enquiry the applicant, the Union of India against whom the suit was instituted and the District Government Counsel or the Government Pleader were the only necessary parties. Any other person even though he might claim an interest in some of the property alleged to belong to the applicant would not be a necessary party at all. There is no provision in the C.P.C. for impleading as a party in such an enquiry. The law is that the court must make an enquiry into all the means possessed by the applicant and the enquiry must be made as between the parties to the suit and the Government Pleader. The learned Civil Judge by enquiring into the alleged fictitious nature of the sale certainly did nothing that he was not required to do. It was his duty to decide whether the house was the property of the applicant or not. To this enquiry only the applicant, the Union of India and the Government Pleader could be the parties and not the son-in-law or anybody else who might have claimed interest in it. We find nothing illegal in the procedure adopted by the learned Civil Judge.

4. We see no substance in this application and dismiss it with costs.

5. Sri Raja Ram requested us to give the applicant further time to make good the deficiency in the court fee payable on the plaint. This is not a matter within our jurisdiction. It was the duty of the learned Civil Judge on dismissing the applicant's application, to sue as a pauper to require the court fee to be paid on the plaint within a certain time. We understand that the gave him time but he did not pay the court fee within it. Any further time can be given to him only by the learned Civil Judge; We do not think we have any jurisdiction to give him time ourselves. Section 148, C. P. C. empowers the learned Civil Judge to grant further time in appropriate cases. It would be for him to decide whether there was any justification for the applicants not making good the deficiency in the court fee within the time allowed by him and for granting him further time now after the lapse of four years.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //