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P.P. Lakshminarayana Upadhyaya Vs. the Premier Bank of India Ltd., (In Voluntary Liquidation) by Its Voluntary Liquidator and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1968)1MLJ333
AppellantP.P. Lakshminarayana Upadhyaya
RespondentThe Premier Bank of India Ltd., (In Voluntary Liquidation) by Its Voluntary Liquidator and anr.
Cases ReferredVijai Pratab v. Dukh Haran Nath
Excerpt:
- orderp. kunhamed kutti, j.1. this application by way of appeal is against the order of the learned master dismissing the appellant's application no. 82 of 1965 for leave to institute the suit in forma pauperis.2. the learned master has found in his order that the applicant has no cause of action for instituting the suit and that the reason given by the applicant that he had not seen the promissory note filed with the plaint is not acceptable. the applicant had been cross-examined before the learned master at great length. his evidence and the arguments urged by him were considered by the master and the conclusions come to by the learned master are thus set cut by him:thus the evidence tendered by the petitioner is prima facie unacceptable and his evidence is not at all believable. thus.....
Judgment:
ORDER

P. Kunhamed Kutti, J.

1. This application by way of appeal is against the order of the learned Master dismissing the appellant's Application No. 82 of 1965 for leave to institute the suit in forma pauperis.

2. The learned Master has found in his order that the applicant has no cause of action for instituting the suit and that the reason given by the applicant that he had not seen the promissory note filed with the plaint is not acceptable. The applicant had been cross-examined before the learned Master at great length. His evidence and the arguments urged by him were considered by the Master and the conclusions come to by the learned Master are thus set cut by him:

Thus the evidence tendered by the petitioner is prima facie unacceptable and his evidence is not at all believable. Thus his version that he came to know about the alleged fraud only in 1963, cannot be believed, and I find that he had knowledge of it if there be fraud even in 1955. Thus the present suit is clearly barred by limitation. Thus there is no cause of action for the applicant to institute the suit and the suit filed is also barred by limitation.

3. For the applicant, it is contended before me that the view taker, by the learned Master is not correct and that he ought to have held that cause of action and limitation are not questions to be considered at the stage of pauper application, but in the suit.

4. Order 33, Rule 1, Civil Procedure Code, defines a pauper as a person not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in a suit or where no fee is prescribed when he is not entitled to property worth one hundred rupees other than his wearing apparel; and many part of the subject-matter of the suit which the opposite party relinquishes and places at the immediate disposal of the plaintiff shall be taken into account in considering the question of the possession of sufficient means by the plaintiff.

5. The suit which the present applicant seeks to file in forma pauperis is to set aside an ex parte decree in favour of the defendants for Rs. 52,269-36 P. and his application for leave to sue as a pauper was opposed on grounds firstly, that he is not a pauper and secondly, that he has no cause of action against the defendants and the suit is barred by law. The learned Master has found that the applicant's means to pay the Court-fee of Rs. 3,920-75 P. on the plaint was not seriously questioned before him. But it is said to have been pressed before him that the suit was barred under Order 33, Rule 5 (d) and (d-1), Civil Procedure Code. Clause (d-1) was added in Madras in 1936; so that this Court can reject under Order 33, Rule 5 an application for permission to sue as a pauper where, inter alia the allegations do not show a cause of action or where the suit appears to be barred by any law.

6. The applicant's allegations in the plaint are that one S.V. Rao advanced moneys from the Premier Bank of Madras in connection with the construction of a temple for Sri Krishna for which moneys were collected from the public and handed over to S.V. Rao, that Rao had advanced moneys from the Bank and that with a view to facilitate such advances, the plaintiff had given signed blank papers, cheques and blank printed promissory note forms to Rao. It is also alleged that Rao had removed for safe custody from the applicant's thatched shed all accounts, sale, deed and title deeds relating to the property and that these were kept in a room in the house of Rao. Since Rao died, the second defendant who was the then Chairman of the Bank and a legal Adviser of the Bank took away the records of the plaintiff including the signed papers, printed promissory notes, etc. and taken advantage of these documents, created a false document in favour of the bank. It is the further allegation of the appellant that C.S. No. 287 of 1953 was filed in the High Court against him on the basis of a promissory note for recovery of Rs. 43,316 that this suit was subsequently transferred to the City Civil Court and that it happened to be decreed ex parte on 1st October, 1955, as he could not attend the Court on the aforesaid date. His application to set aside the ex parte decree was ordered on condition of his depositing into Court a sum of Rs. 10,000 within two months and the appeal by him to the High Court against this conditions was dismissed. He did not however satisfy the conditions as to deposit so that the Bank obtained a final decree for sale of the building and in execution purchased the property on 13th November, 1959. Certain worshippers then filed a suit for declaration that the building was a public temple and the equitable mortgage or which the Bank had obtained/the decree was invalid. This suit was dismissed with a direction to the plaintiffs therein to move the Deputy Commissioner, Hindu Religious and Charitable Endowments. This was done and the Deputy Commissioner, by order dated 15th May, 1063, declared that the temple is a public temple and the appeal filed by the Bank is said to be pending.

7. In the petition before the Deputy Commissioner, O.A. No. 40 of 1961, one of the directors of the Bank which is now in voluntary liquidation stated that there was no promissory note by the applicant dated 1st October, 1952, and that me promissory note was of the date 7th October, 1952. The decree in execution of which the property was sold was obtained on the foot of a promissory note dated 1st October, 1952 and the case of the applicant is that he came to know of the fraud only on 21st January, 1963 and, therefore, he is entitled to get the ex parte decree obtained on the promissory note dated 1st October, 1962, set aside, the allegation 'being that it had beer, obtained fraudulently without any mention of the promissory note dated 7th October, 1952. Such in brief are the plaint allegations.

8. The liquidators of the Bank denied that any fraud was practised on the applicant, that the borrowing from the Bank had been admitted by the applicant himself, that he had also deposited, the title deeds with the Bank and that in C.C.A. No. 29 of 1957 it has been held that there has been no dedication of the property and that it is not a public temple. It was in these circumstances that the learned. Master considered whether there was any cause of action for the plaintiff's suit and whether the claim was barred by limitation.

9. Undoubtedly, each case has to be considered on its own allegations. What is characterised as fraud in this particular case is an alleged statement of one of the directors that the promissory note executed by the plaintiff is dated 1st October, 1952 and not 7th October, 1952. The learned Master has found that the applicant had knowledge of the suit promissory note even in 1955 and the alleged discovery of fraud in 1963 has been put forward only with a view to institute the suit as a last ditch fight to deprive the Bank of the money advanced by it for the building and purchase of the property. After having carefully considered, the order of the learned Master in the light of the arguments addressed to me for the applicant, I am constrained to state that, on the peculiar facts of this case, the view taken by the learned Master is correct.

10. This Court has no doubt held in Rukminamma v. Ramayya : AIR1943Mad712 , that if the Court is to dismiss an application for leave to sue in forma pauperis on the ground that there Is no subsisting cause of action, it must be able to draw that conclusion from the allegations in the plaint itself. But as pointed out by Horwill, J., in this case, it is permissible to read with the plaint the documents referred to in the plaint, though the Court should not travel beyond the plaint and perhaps the documents.

11. The applicant's allegation as to fraud is devoid of any particulars as to the fraud except the fact that the date in the promissory note is different. But the evidence before the learned Master justifies the conclusion come to by him. A Bench of this Court has laid down in Anganna Goundan v. Angamuthu Goundan : AIR1956Mad271 , that, considering the scheme of Order 33 of the Code of Civil Procedure, the result of the Sub-rule (d)(i) of Rule 5 added by the Madras amendment is that if the Court is satisfied, that any suit sought to be fired in forma pauperis is barred by any law, it can reject the application for permission to sue as a pauper after examining the applicant only without hearing the other side. But the combined effect of Rules 5, 6 and 7 of Order 33, Civil Procedure Code, as pointed out by the Bench is that if the Court is satisfied in the first instance that an application to sue in forma pauperis is in proper form and is duly presented it can, if it thinks fit examine the applicant on the merits of his claim and his property. At this stage the opposite party has no locus standi. If the Court sees no reason to reject the application on a prima facie perusal of it, then it has to give notice to the Government Pleader and the opposite party and fix a date for receiving such evidence as the applicant may adduce to prove that his application is not subject to any of the prohibitions mentioned in Rule 5 and. at this stage the opposite party is entitled to let in rebutting evidence to the contrary. If this stage is successfully tided over by the applicant, then his application should, be registered as a suit. At this second stage there is no warrant for restricting evidence to be let in only In regard to the allegations in the application. Rule 6 expressly allows the opposite party to adduce evidence, It is open to the respondent to let in evidence to show that the suit appears to be barred by any law.

12. In the case on hand, the matter has been considered as at the second stage and it bas been found by the learned Master on the evidence before him that the applicant has no cause of action and the claim is prima facie barred by limitation. He has found that the facts relied on by the applicant viz., that the decree was obtained by a false document and that he knew about it in January, 1963 are false. Apparently a clerical error as to the date of the promissory note has been sought by the applicant to be characterised as a fraud and such an attempt, it is obvious, should not be allowed to prevail when, on a consideration of the plaint allegations in the light of the applicant's evidence, it has been found that no fraud, which could give a cause of action as on the date alleged, in the plaint, is possible to be really inferred. The rules do not contemplate a conclusion as to fraud because the word is mentioned. What is really intended is that there should be allegations which could be construed as fraud that would give a cause of action and this should appear clearly.

13. As I have already indicated, the Court, of course, is not justified in determining a doubtful question of limitation or hold an elaborate enquiry into doubtful and complicated questions of law at this stage, by Order 33, Rule 5, Civil Procedure Code. But the present is a case where, as shown by the learned Master, the alleged fraud on the face of the plaint is a misnomer and in the absence of fraud, there could be no cause of action. The law relating to this aspect has been laid down by the Supreme Court in Vijai Pratab v. Dukh Haran Nath (1964) 1 S.C.J. 266 : (1962) 2 S.C.R. (1964) 1 An.W.R. 79 : A.I.R. 1962 S.C. 675 : (1964) 1 M.L.J. 79 thus:

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 cause of action. The Court has not to see whether the claim made by the petitioner is likely to 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 defenses 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 petition, prima facie, show a cause of action, the Court cannot embark upon an enquiry 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 decision at the hearing-of the suit.

14. The present, however, is a case where as found by the learned Master, the plaint allegations properly construed along with the evidence of the applicant do not disclose a cause of action and, therefore, the Master was right in dismissing the plaintiff's application for leave to sue in forma pauperis.

15. This application by way of appeal is, therefore, dismissed with costs to the respondents.


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