(1) The plaintiff in C. S. 21 of 1963 has filed this petitioner under Order 44 rule 1 C.P.C. for leave to appeal in forma pauperis against the judgment of Ramamurti J. on the Original Side of this Court. The plaintiff filed the suit itself in forma pauperis for the relief of specific performance of an agreement of sale between himself and the first defendant on 1st December 1950. This agreement of said was oral and under it the first defendant is alleged to have agreed to convey the suit property to the plaintiff for a sum of one lakh of rupees and the plaintiff paid at that time a sum of Rs.7500 as part consideration Subsequently a written agreement was prepared on 1st June 1951 on unstamped paper and in this the earlier oral agreement was recited. The time fixed for completing the sale was five years. But on 1st June 1955 a fresh period of five years was granted by the first defendant to the plaintiff to complete the sale.
In the meantime, the first defendant mortgaged the same property to the second defendant, on 7th March 1952, for a sum of Rupees 50,000 and there was a subsequent mortgage on 20th August 1953 in favour of one Saraswati Ammal, wife of the second defendant, for a sum of Rs.7000. This Saraswathi Ammal filed a suit C. S. 1607 of 1954 on the file of the City Civil Court on the mortgage, obtained a decree and brought the property to sale. The sale took place accordingly and was confirmed on 1st August 1959. Defendants 2 and 3 had obtained permission from the court to purchase the property and they became the auction purchasers. They obtained possession of the property through court on 11th December 1959. At that time the plaintiff put forward the agreement in his favour and made an application before the City Civil Judge, who rejected the application as the found that the alleged agreement was brought about as a result of collusion between the plaintiff and the first defendant. To set aside the above order and also obtain the relief of specific performance, the plaintiff filed the present suit C. S. 21 of 1963.
(2) The learned Judge after a consideration of the evidence, oral and documents came to the conclusion that the agreement was not true and that there was real collusion between the plaintiff and the first defendant. He also made several animadversions on the conduct of the plaintiff in what appears to be strong terms in prosecuting the suit without any proper basis. The learned Judge dismissed the suit, since, in his opinion, there were grounds to hold that the two agreements on which the plaintiff relied were antedated and forged. He ordered that a complaint should be filed against the plaintiff for prosecution under Section 479-A of the Criminal Procedure Code. Accordingly a prosecution has been filed and it is now said to be pending.
(3) Learned counsel appearing for the plaintiff, urged that the way in which the trial had been conducted before the learned Judge make him feel that the trial had not at all been a fair one. He made in particular, an allegation that the questions which the Court itself put to the plaintiff and his witnesses, virtually amounted to cross-examination, and thereby the appellant's right to lead evidence was virtually affected. he also alleged that the several adverse remarks which the learned Judge himself made against the conduct of the plaintiff and the first defendant were wholly unjustified in support of his argument that the court should be careful in putting questions to the witnesses, he referred to the decision of the Queen's Bench in Jones v. National Coal Board, 1957 2 QB 55, where there was an observation that though a Judge might have been actuated by the best of motives, his interventions taken together, if found to be excessive and ill-timed, with the result that not sufficient primary facts had been elicited to enable the appellate Court to determine the issues as to liability, there must be a new trial.
(4) After going carefully through the judgment and the argument of the learned counsel for the appellant, it appears to us that the main question for the purpose of the present application for permission to appeal in forma pauperis is whether the decree of the trial court is contract to law or to some usage having the force of law or is otherwise erroneous and unjust. On a perusal of the judgment, we are of opinion that there are prima facie ample grounds to justify the view of the trial court that the plaintiff has not established his case about the existence of a valid agreement of sale in his favour from the first defendant, before the actual sale of the property in the court sale in execution. There is no allegation of any law of usage having the force of law having been contravened by the judgment. It will not be proper for us for the purpose of the present application, to embark on an enquiry and investigate whether the questions put by the court to the witnesses erred on the side of cross-examination.
In this connection, we may observe that the plaintiff himself is reported to have changed his counsel several times, and ultimately when the case came up for hearing, there was no counsel to represent him, and the Judge might have therefore felt it necessity to put some questions to the plaintiff to clear up points of difficulty in the evidence available. But we refrain from making any further observations at this stage, on the allegation made about the nature of the question, put by the learned Judge, and which led the appellant to apprehend that the questions were really in the nature of cross-examination. But what we have stated above is sufficient for us to hold that this is not a case where leave to appeal in forma pauperis should be granted.
(5) The application is dismissed. Time to pay court-fee six months from this date.
(6) Petition dismissed.