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Arakchand Kankaria Vs. Amarchand Kankaria and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 594 of 1960
Judge
Reported inAIR1962Mad252; (1962)1MLJ3
ActsCode of Civil Procedure (CPC), 1908 - Order 33, Rule 5; Transfer of Property Act - Sections 69
AppellantArakchand Kankaria
RespondentAmarchand Kankaria and ors.
Excerpt:
- - i think the last contention is well founded......the sixth assistant judge, city civil court, madras declining leave to sue in forma pauperis. the learned judge found that prayers (d) and (e) in paragraph 15 of the proposed plaint were barred by limitation and considered that the proper order to be passed in the circumstances was 'to' reject the original petition under order 33, r. 5 of the civil procedure code, giving the petitioner an opportunity to file a fresh petition, if he thought it necessary, in respect of his claim for partition of the suit properties and a declaration that the mortgage in favour of the third respondent did not convey a valid power of sale. the suit which the petitioner sought to file in forma pauperis was for partition of the properties in b and c schedule between the plaintiff and defendants 1 and 2 for a.....
Judgment:
Acts/Rules/Orders:

Civil Procedure Code, 1908 - Order 33, Rule 5; Transfer of Property Act - Section 69

Order

(1) This revision by the plaintiff is directed against the order of the Sixth Assistant Judge, City Civil Court, Madras declining leave to sue in forma pauperis. The learned Judge found that prayers (d) and (e) in paragraph 15 of the proposed plaint were barred by limitation and considered that the proper order to be passed in the circumstances was 'to' reject the original petition under Order 33, R. 5 of the Civil Procedure Code, giving the petitioner an opportunity to file a fresh petition, if he thought it necessary, in respect of his claim for partition of the suit properties and a declaration that the mortgage in favour of the third respondent did not convey a valid power of sale. The suit which the petitioner sought to file in forma pauperis was for partition of the properties in B and C schedule between the plaintiff and defendants 1 and 2 for a declaration that the third defendant third respondent was not entitled to bring the mortgaged property to sale under S. 69 of the Transfer of Property Act, for setting aside the mortgage deed dated 14-8-1950 in favour or the third defendant third respondent as not binding on the plaintiff and his share of the joint family assets, for declaring that the decree obtained by the fourth defendant fourth respondent in C. S. No. 352 of 1950 was not binding against the plaintiff and for certain other reliefs.

The City Civil Judge thought that if the plaintiff wanted to impeach the mortgage effected by his brother, he ought to have come to court within three years from 1953, when he attained the age of majority, though the mortgaged in question was executed only on 14-8-1950. In that view, the learned Judge held that prayer (d) in respect of that mortgage was barred by time. Similarly, he was of the view that prayer (e) for a declaration in respect of the decree in C. S. No. 352 of 1950 was also barred by time. According to the learned Judge, the suit should have been filed on or before 19-2-1955, that is, within three years of the date of the decree. On those findings the learned Judge made an order which I have already referred to. Hence this revision petition by the plaintiff.

(2) Sri R. Gopalaswami Aiyangar the learned counsel for the plaintiff petitioner contends that the view of the learned Judge that prayer (d) is barred by limitation cannot be supported. So too he contends that the learned Judge was wrong in holding that prayer (e) also is barred by time. The learned counsel further contends that in any case even assuming without admitting that the two prayers were barred by limitation that by itself did not justify the learned Judge to pass the order which he did for clause (d-1) of rule 5 of Or. 33 of the Civil Procedure Code only directs that the court shall reject the application for permission to sue as a pauper where the suit appears to be barred by any law. In other words the contention is that the court has no jurisdiction to withhold leave to sue in forma pauperis only on the ground that one or more of the prayers as distinguished from the suit as a whole were barred by limitation. I think the last contention is well founded.

A suit comprises all the prayers and not merely one or more of them. The plaintiff in this case has sued in the main for partition and as incidental to that prayer he has asked for the other relief namely for setting aside the decree as also the mortgage. Those prayers by themselves did not constitute the 'suit' within the meaning of clause (d-1) of Rule 5 or Order 33, C. P. Code. Where the court finds that one or more of the prayers which cannot by themselves be said to constitute the suit, are barred by limitation, it has, in my view, no jurisdiction to withhold leave, provided of course the petitioner is a pauper, to sue in forma pauperis, or to limit the leave to the prayers not found to be barred by limitation, or even to direct the petitioner to file a fresh petition for leave confining the plaint to those prayers not barred by limitation. The court is bound to reject an application for permission to sue as a pauper only when it finds that the 'suit' as such including all the prayers but not merely one or more of them is barred by limitation.

(3) On the above view, it follows that the learned City Civil Judge was not right in rejecting the petition. It also follows from the above view it is not necessary to go into the question whether the learned Judge was right in holding that prayers (d) and (e) were barred by limitation. But I may state at once that the learned Judge's view that the prayer in respect of the mortgage was barred by time is obviously untenable. But, as I said, I do not feel called upon to record a finding whether the learned Judge was right in the view he took as regards limitation in respect of prayers (d) and (e).

If and when leave to sue in forma pauperis is granted, the question of limitation will have to be gone into in more detail and decided at the trail of the suit. In that sense, the finding of the learned Judge on the question of limitation in respect of prayers (d) and (e) cannot be regarded as final as between the parties. The revision petition is allowed.

The order of the lower court is set aside and the petition for leave to sue in forma pauperis is remitted for fresh disposal after an enquiry into the alleged pauperism for the entire court-fee payable in respect of each of the prayers including prayers (d) and (e) in the plaint. There will be no order as to costs.

(4) Revision petition allowed.


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