Birakayala Siva Rao vs Birakayala Ramajoga Rao and Others

Krishnaswami Ayyangar, J.—This appeal arises out of a suit instituted by the appellant to recover the suit properties on the ground that he is

the reversioner to the estate of one Siva Rao, to whom they originally belonged. Siva Rao died in 1879 and was succeeded by his adoptive mother

Syamalamba who died on 8th July, 1927. The suit was instituted on 26th June, 1939. There were six defendants in the suit and they raised various

defences which are all reflected in the issues'' framed by the District Judge. Out of these, the first part of issue 4 and the whole of issue 7 were

taken up for consideration as preliminary issues. The learned District Judge found these issues in favour of the defendants and accordingly

dismissed the suit.

In order to appreciate the contentions of the appellant, it is necessary to state a few facts. On the 7th March, 1933, the appellant filed a petition

under Order 33, Rules 2 and 3 of the CPC for leave to institute a suit for the same reliefs as those for which the present suit has been instituted.

This petition was ultimately dismissed on 3rd November, 1933, the petitioner being directed, to pay Rs. 17 as costs to the contesting respondents

who are defendants I and 2 here and Re. 1 for the costs of the Government. These costs were not paid until some time after the institution of the

present Suit in which the plaint was filed on 26th June, 1939. The plaint bore a court-fee of annas twelve only although the proper court-fee was

Rs. 337-7-0. The conduct of the plaintiff in paying a court-fee of annas twelve only can scarcely be regarded as bona fide, as it is impossible to

imagine that he could have honestly thought that that was the court-fee. On the 27th June, 1939, the plaint was returned by the Court with a

direction that the deficit court-fee should be paid and time was granted for this purpose till 10th July, 1939. On that day the plaint was re-

presented but without payment of the deficit court-fee. The plaintiff again asked for time and the Court granted time till 26th July, 1939. On that

date the plaint was re-presented with a court-fee of Rs. 336-7-0 which still left a deficit of annas four which was made good only on the 29th July,

1939. On the 1st August, 1939, the suit was taken on file and the plaint was numbered as O.S. No. 35 of 1939.

The two preliminary issues to which we referred were the following:

Issue 4 : Whether the suit is barred by reason of non-payment of the court-fee in time?

This is the first part of issue and the second part was '' Is the suit in time? '' The seventh issue was:

Whether the suit is not maintainable under Order 33, Rule 15 of the Code of Civil Procedure?

It may be mentioned that under the provisions of Order 33, Rule 15, it is obligatory on the plaintiff that he should first pay the costs in the pauper

petition incurred by the Provincial Government and by the opposite party. The language of the rule leaves ho room for doubt that the right of suit

recognised by the rule is made expressly subject to the condition that he should pay the said costs before the institution of the suit. These costs

were, however, only paid on 24th July, 1939, long after the presentation of the plaint on insufficient stamp paper, but before the deficiency was

made good on 29th July, 1939. If the date when the plaint was filed, namely, 26th June, 1939, is regarded as the date on which the suit was

instituted, it is plain that the plaintiff has not satisfied the condition laid down in Order 33, Rule 15. The argument advanced on behalf of the

appellant is this : that the plaint in the present suit should be deemed to have been instituted not on the date on which the plaint was filed but only on

the date when the deficit court-fee was made good on 29th July, 1939. This is a contention which, in our opinion, leads to an absurd result. It can

scarcely be doubted that if a plaintiff institutes a suit oh payment of the full court-fee but without having paid the costs payable under Rule 15, the

suit is liable to be dismissed. If we are to accede to the argument of the appellant, it would mean that the person who has not paid the costs of the

pauper petition, but who deliberately institutes a suit with an insufficient court-fee is entitled to a privilege which is not available to a bona fide

litigant paying the full court-fee. This is, in our opinion, not common sense; neither do we consider it good law. We must therefore negative this

contention. The best that we can do for the appellant is to take the course adopted in Ramakrishna Nadar and Another Vs. Ponnayya Thirumalai

Vandaya Thevar and Others, and treat the suit as having been instituted on the 24th July, 1939, when the costs of the pauper petition were paid

into Court. But this course would not benefit the plaintiff because by that time the suit had been barred by limitation in view of the fact that the

limited owner had died on 8th July, 1927, mere than twelve years before suit. The learned Judge has apparently taken this view on the point of

limitation and has dismissed this suit. Mr. Raghava Rao, the learned advocate for the appellant, urges that the issue of limitation was not before the

Court at the time when the preliminary issues were discussed, because it was the second part of the fourth issue that raises it. He therefore invites

us to remand the suit for disposal of the issue of limitation and the other issues arising in the case with the expression of our opinion that the suit

must be deemed to have been instituted on the 24th July, 1939. This course cannot, however, benefit the plaintiff in the circumstances of this case.

Mr. Raghava Rao says that the suit is in time as he is entitled to claim a deduction of time taken up in the prosecution of the pauper petition, under

the provisions of Section 14 of the Indian Limitation Act, and if this deduction is made, the suit would be in time. Now, in the first place it falls to

be mentioned that the plaint, as it stands, does not ask for any exemption under this section or any other section. Secondly no claim to deduction of

time seems to have been made in the Court below when the preliminary issues were discussed. In fact, the plaintiff cannot ask the Court to take

into consideration this exemption unless the pleading contains a reference to the exemption and the ground on which it is claimed. Mr. Raghava

Rao, however, invites us to give him an opportunity of pleading Section 14 and for that purpose he desires us to remand the suit directing the Court

below to deal with his application for amendment of the plaint so as to enable him to claim the exemption. We are not disposed to grant this prayer

which is a matter entirely in the discretion of the Court. The learned Judge rightly remarks that the conduct of the appellant has not been such as to

warrant the Court showing any indulgence to him. He remarks that the appellant has been guilty of dishonesty in filing the plaint on a court-fee of

twelve annas and in making no mention of the pauper petition and its dismissal with costs. It is unnecessary to say whether the facts are sufficient to

warrant the observation that the appellant has been dishonest. But we consider that his conduct cannot be regarded as bona fide when he filed the

suit with a court-fee of annas twelve only. In these circumstances we do not consider that this is a fit case in which an indulgence ought to be

granted to the appellant.

The position then being that the suit must be deemed to have been instituted only on the 24th July, 1939, more than twelve years after the cause

of action accrued to the appellant, it must be held to be barred in the absence of any exemption. As we have pointed out, no exemption has been

claimed. We therefore concur in the finding of the learned Judge that the suit is barred by limitation.

The appeal therefore fails and is dismissed with costs.