Madhura Krishnamurthy Sastri vs Yerra Ramamurthi and Others

Bhimasankaram, J.—This Civil Revision Petition is filed against the order of the learned District Munsif of Rajahmundry rejecting O. V. No. 2 of 1952 on his file under Order 33, Rule 5, Code of Civil Procedure. This original petition was at first presented to the DistricH Court, Rajahmundry, on 26th February, 1949, by the present Petitioner. He sought thereby leave to sue as a pauper for partition of the plaint A and B schedule properties into three equal shares by metes and bounds and for recovery of his share. He attacked alienations of these properties made in favour of the Respondents 1 to 20 by his father (the 21st Respondent to the petition) as having been effected without any legal necessity or benefit for the family and therefore not binding on him and the 22nd Respondent, who is the brother.

The Petitioner therefore claimed the recovery of his third share of the alienated properties. He stated that he had attained majority on 26th February, 1946. The original petition was actually presented on 26tb/ February, 1949, i.e., on the very last day of limitation. It was numbered as O. P. No. 36 of 1949 on the file of the District Court. There was an enquiry held into the Petitioner''s pauperism and the petition was ultimately directed to be registered as suit (O. S. No. 15 of 1950) in forma pauperis. It was, however, transferred from the file of the District Court to the file of the Sub-Court, Rajahmundry, on the file ol which it was renumbered as O. S. No. 110 of 1950.

The 18th Respondent filed I. A. No. 630 of 1951) in the Sub-Court, Rajahmundry, alleging that the properties in suit were over-valued and if they are properly valued, the suit would lie only in the District Munsif''s Court having territorial jurisdiction. Of may be noted that the plaint A schedule consists of lands which are acres 7-16 cents in extent, while R schedule consists of two items, (1) a house in Rajahmundry Municipality and (2) a site in a village in Rajole Taluk. The 1st item of the B schedule was valued by the Petitioner at Rs. 10,000 and all the other:items together both of the A and B schedules were valued, at Rs. 2,468. The Petitioner''s l/3rd share therefore was put at Rs. 4,156 which was the value for the purpose of both court-fee and jurisdiction.

On the 18th Respondent''s application, an amen of the Court was appointed to investigate the value of item 1 of the B schedule and he assessed it at only Rs. 4,800. The result was that the value of the whole suit was reduced to Rs. 2,422-10-8, being the value of the Petitioner''s l/3rd share in properties of a total value of Rs. 7,268. Consequently, the Sub-Court held that the proper Court having jurisdiction the u/s 15 of the CPC was there District Munsif''s Court exercising jurisdiction locally and passed an order, dated 31st October, 1951, returning the, plaint for presentation to the proper'' Court. It appears that the plaint was actually returned only on 14th November, 1951 and on the same day it was presented to the District Munsif''s Court, Rajahmundry, by the advocate who had appeared for the Petitioner (Plaintiff) in O. S. No. .110 of 1950.

A fresh enquiry has since been made by the District Munsif into the pauperism of the Plaintiff and a finding has been recorded that he is a pauper. But, it. was objected before the learned District Munsif by the 18th Respondent that the proceeding ought to be treated as a fresh original petition for leave to sue as a pauper and as it was not presented by the Petitioner himself as provided by the rules but by his advocate, the presentation was invalid. It was also urged that the original petition was liable to be rejected on the ground that the claim made therein was barred by time, as, in the circumstances of the case, "Section 14 of the Limitation Act could not be invoked by -the Petitioner for want of bona fides. The contention was that there was a deliberate over-valuation of (the properties by the Petitioner in order to make it appear that they were sold by his father for an inadequate price; that it was that mala fide object that resulted in the presentation of the petition in a higher Court and that there was no bona fide mistake in regard to the value of the property. The learned District Munsif upheld both the objections.

He held in regard to the first objection that ''though it was not necessary for the Petitioner to have presented the O. P. which he, however, calls a plaint in person under Order 33, Code of Civil Procedure, as the advocate who presented it did not file a fresh vakalat &t the time of the presentation in the Munsif''s Court, the presentation was invalid.I Io held in regard to the second objection that the Petitioner could not be said to have acted bona fide in presenting the Original Petition in the District Court on 26th February, J1949, as he had made no enquiry whatever regarding the correct market value of item 1 of the B schedule when he assessed it at Rs. 10,000 in the Original Petition.

Mr. Pathasarathi, the learned advocate for the Petitioner, contends that on both the points, the leaned District Munsif went wrong. It may be noted at this stage that a new vakalat was filed in these proceedings on 10th December, 1951 and that the Petitioner also presented the petition in person,on that date. Now as regards the bona fides of the valuation, it seems to me that the learned District Munsif is clearly wrong. Item 1 of the B schedule,

it must be remembered, is a house situate in the Municipality of Rajahmundry.

There is bound to be in the valuation of such an item, considerable difference of opinion. In the first instance, it does not appear that its value in the year 1951 (when it was determined to be Rs. 4,800 by the amin) was the same as that in 1949 when the petition was: presented. Besides, P. W- 1 has sworn that he got the value estimated by a Town Planning Supervisor. This statement has not been contradicted on the opposite side. It is true that according to the Full Bench decision in Gnanacharya Swamigal v. Saravana Perumal ILR (1941) Mad 347: (AIR 1941 Mad 319) (A), the burden of establishing bona fides u/s 14 of the Limitation Act is on the person seeking the benefit of that provision.

But, when he gives a narrative of the events leading up to the presentation of the plaint in the wrong Court and there is nothing elicited in his cross-examination to rouse suspicion and when no evidence to the contrary is led by the opposite party, the Court should naturally draw an inference of bona fides, because, normally speaking, there is no presumption of mala fides. The learned District Munsif''s remark that the Petitioner made no enquiry regarding the correct market value, of item 1, is it seems to me a material mis-statement.

As already pointed out, it is very difficult to arrive at anything but an approximate value of a house in a town like Rajahmundry. The value depends upon quite a number of factors which may vary from, year to year. The learned District Munsif totally ignored this aspect of the matter also. For these reasons, I hold that the Petitioner must be taken to have established the fact that he bona fide presented the petition in a wrong Court and that he could invoke the aid of Section 14 of the Limitation Act for the purpose of saving his claim from the bar of limitation.

The next question is whether the presentation of the plaint in the Munsif''s Court by the vakil was not a valid presentation. It is to be remembered that this vakil had filed a vakalat already in the suit when the petition was numbered as a suit in the Sub-Court and presumably the same vakalat accompanied ''the plaint'' when it was presented in the District Munsif s Court, after the order of the Sub-Court. Is it necessary for the Plaintiff''s advocate, in the circumstances, to have filed a separate vakalat in the District Munsif''s Court?

do not think so.

It is true that the proceedings before the District Munsif are not a continuation of the proceedings before the Subordinate Judge. But when the advocate had got a vakalat to proceed with the suit arising out of the Original Petition, that vakalat cannot be said to have been used up until such a suit was properly disposed of. It must be deemed that the vakalat also was wrongly presented in the proceedings in the Court which declined jurisdiction in the matter and that it could be used along with the other papers returned.

It is not as if there was any termination of the suit in which the advocate was authorised to appear resulting in, so to say the termination of the authority of the advocate. That authority was evidenced by the vakalat and so long as the proceedings did not terminate by the disposal of the suit for the purposes of which it was granted, the vakalat could certainly (be used in any such suit, wherever pending. I am not inclined to uphold the submission of Mr. Bapi-raju for the Respondent that a fresh vakalat was necessary for Mr. Apparel to enable him to appear in the proceedings in the; Dist. Munsif''s Court. Just as the same piece of paper could be presented as plaint (or petition) in the court to which it is transferred, with the court-fee already paid, if any, the same vakalat form also could, in my opinion, be used in the other Court. That the advocate was in fact invested with authority to appear for the Petitioner has not been disputed before me nor the fact that he had entered appearance in the Sub-Court. I hold that in the circumstances, no fresh vakalat was necessary for the advocate to conduct the suit before tire learned District Munsif.

The contention, however, remains that the returned plaint should be treated as an Original Petition and should be rejected for not having been presented in person by the Petitioner. The lower Court decided this point in favour of the Petitioner. There is a decision directly covering the point, reported in Papathi Ammai v. Karuppiah Pilla AIR 1931 Mad 418 (B), on facts which are on all fours with those in the present case. The Petitioner in that case had sought by an O. P. permission to institute a suit in forma pauperis in the Sub-Court of Ramnad and had his petition allowed. The petition was then numbered as a suit. But subsequently it was discovered that there was an under-valuation of the suit claim, and that it was actually triable by the District Munsif of Ramnad. A joint memorandum by both the parties was thereupon filed whereby it was agreed that the suit should, because of this, be tried by the District Munsifs Court, Ramnad.

The plaint was therefore returned for presentation to the proper Court under Order 7, Rule 10, Code of Civil Procedure. Objection was taken before the District Munsif by the Respondents therein that there was no valid presentation of the plaint as it was pre" rented by a pleader and not by the party in person in accordance with the requirements of Order 33. That objection was upheld by the lower Court. Madhavan Nair J., (as he then was sitting in revision, however, held that the plaint having been returned by the Subordinate Judge of Ramnad to be presented to the District Munsif, no objection could be taken to the validity of the presentation. In doing so, the learned Judge observed as follows:

In a case of this description when the plaint" validly returned by one Court is presented to Anr. Court in pursuance of the order passed by the first Court, I do not think that the objection that it should ''have flee filed by the party in person in order to entitle the" Petitioner to ask for liberty to continue the suit in forma pauperis can be upheld.

He referred to the case reported in Kolluri Subbarao Vs. Kolluri Venkataratnam and Others, (C), where it was pointed out that if a plaint had been validly presented in a Court and then the Petitioner sought by a petition leave to continue the suit in forma pauperis, his petition was not to be dismissed on the ground that it had not been presented in the form prescribed by Rule 2 of Order 33 and in person as required by Rule 3. Mr. Bapiraju has argued that the authority of this ruling has been seriously shaken by that in Munuswamy Gounder v. Mottayya Gounden ILR (1954) Mad 1202: (AIR 1954 Mad cS53) (D), decided by a Bench of the Madras High Court made on 2nd December,.,1953, before the constitution of Andhra High Court and therefore (if in point) binding upon me under tho ruling of a Full Bench of this High Court which has held that all decisions of the Madras High Court rendered before the inauguration of this High Court are binding precedents.

In the case cited, the Appellant applied for leave to sue in forma pauperis in the Court which had pecuniary jurisdiction to entertain it just on the last day of 3 years of his attaining majority. The application was not presented in person by the Petitioner as required under Rule 3 of Order 33. It was held that "the plaint'''' was not validly presented on that date and that as the claim was, in part, barred by limitation by the date when it was actually presented in person by the Appellant, this suit was dismissed pro tan to. Their Lordships said in the course of the judgment:

If the presentation was not in accordance with the rule, it is undoubted law that such a presentation is nonest in the eye of the law and has not the legal consequence of stopping the running of time.

There also the Plaintiff attacked certain alienations effected by his father and having attained majority on the 3rd March, 1945, he filed on 2nd March, 1948, an application in the District Munsif''s Court, Tirukoilur, for leave to sue in forma pauperis. The plaint was returned on the ground of want of jurisdiction on the 16th of September, 1949, and it was presented to the District Court through a vakil on the same day. On these facts it was held that the suit should be treated as having been instituted actually on 4th October, 1949, when the petition was subsequently presented by the Petitioner in person.

It was argued for the Appellant in that case, that the document which was presented to the District Court on 16th September, 1949, should be treated as an unstamped plaint with a prayer for leave to sue as pauper and that the subsequent presentation of the same document on 4th October, 1949, should be treated as an application to continue the suit instituted on 16th September, 1949, as a pauper plaint. Their Lordships had no difficulty in that case in distinguishing the decision in Kolluri Subbarao Vs. Kolluri Venkataratnam and Others, (C).

This matter was a case in which a suit properly instituted at the first instance having turned out to have been presented with an insufficient court-fee, an application was made to allow the Plaintiff to continue the suit in forma pauperis. The learned Judges pointed out that Order 33, Rule 3, .could not possibly refer to such an application. Unfortunately the decision of Madhavan Nair, J., was not brought to the notice of the learned Judges. The circumstances in the case before me are different from those in Munuswami Goundar Vs. Mottayya Koundan and Others, (D) for the reason that the Sub-Court, Rajahmundry, cannot be stated to have had no jurisdiction to entertain either the suit or the Original Petition.

When a plaint is returned by a superior Court to a lower Court, it is not, strictly speaking, because the superior Court is without jurisdiction to entertain it but only in conformity with the provision of Section 15, CPC which requires that "a suit,shall be instituted in the Court of the lowest grade competent to try it." The position is different when ajpuit which ought to be filed in a superior Court, is instituted in a lower Court. That would be a case by real want of jurisdiction. Even then, of course, if the suit had been tried by the lower Court and lifted in a decree, that decree could not be attacked the ground of under vahaation of the suit, hi this view,''. I am not prepared to hold that the authority of the decision of iviadhavan Nair, J., has been nnpair the by the milling in Munuswami Goundar Vs. Mottayya Koundan and Others, (D) though die reasoning in both may not be completely reconcilable.

Another point also may be noted. The proper order in a case like this, should have been, in my opinion, for the Sub-Court to cancel the registration, of the Original Petition as a plaint and to return the- Original Petition for presentation to proper Court, as it has been held that it has power to do-vide Periyaswai Paduyachi v. Ulaganathan ILR (1919) Mad 333: (AIR 1949 Mad 162) (E), If it had do case the) the Original Petition so returned would have to be printed in accordance with Rule 3 of Order 33, Code of Civil Procedure. But what actually happened in the present case was that the plaint as such was directed to'' be returned.

The was an of der which was passed by the Court ''at the instance of the present 18th Respondent. He being a party thereto, cannot contend that what should have been returned was the Original Petition and not the plaint. Nor can the District Munsif deal with'' it as an Orignal Petition ignoring the order of the-Sub-Court returning "the plaint". It has not been contended before me that the order returning the plaint as such was without jurisdiction. In the circumstances therefore of the present case, what was presented to the Munsif''s Court, on t e order o ho Sub-Court, was not an Original Petition but a plaint.

This order, as already stated, is binding on the parties thereto and is not without jurisdiction. In any case/- the District Munsif''s Court, being an inferior oriels bound by that order. I am further of the opinion .that as the 18th Respondent cannot say that what was -presented was an Original Petition, he cannot raise the objection that the presentation was invalid I do not understand the remarks of the learned Judges Munuswami Goundar Vs. Mottayya Koundan and Others, (D) "as'' involving the conclusion that the non-presentation by the Petitioner in person renders all proceeding that may subsequently be taken void in the sense that the Court is bound to set them aside as being without jurisdiction. The object of the rule may be lustfully borne in mind in this collection.

As stated in the rule itself, it is to enable the Court'' to examine the Petitioner, apparently with a j view, to satisfy .itself prima facie that the applicant is axial pauper and that the application is not the to rejection on any of the grounds mentioned in R. The rule does not apply in the case of persons who'' are exempt from appearance in Court. Thus it is a, procedural requirement with a specific purpose and if that purpose had been already fulfilled (as it was in this case), non-compliance with it should not be regarded as a basic infirmity affecting the jurisdiction of the Court, It is not a meaningless but nevertheless indispensable formality which can be used as a formidable technical weapon in the hands of the opposite party.

Further, there is always in such, matters of procedure a limit in regard both to the time and stagy of the proceedings beyond which technical objections would be unsustainable Suppose an applies Hon for leave to sue in forma pauperis was not presented in person by a pauper but still the petition was registered as a plaint and ended in, a decree. The decree could not successfully be attacked, in my opinion, as one totally without jurisdiction. In the circumstances of the present case, I am, satisfied that it is not open to the 18th Respondent to ask the learned District Munsif that the plaint be considered as-an Original Petition for the purpose of rejecting it; on the ground that it was not properly presented.

It is true, of course, that the District Munsifs Court had, as a matter of fact, numbered ''the plain? as an Original Petition though, in the circumstances, it must have been registered as a plaint. But, what according to me is a mistake cannot enable the 18th Respondent to insist that the proceeding should be treated as an Original Petition, especially an Original Petition for the first time presented to the District Munsif.

I am, therefore, of the opinion that the order of the learned District Munsif, is wrong and that it should be set aside. The result is that the Original Petition will be registered as a suit and proceeded with. The Civil Revision Petition is therefore allowed. But, in the circumstances, I make no order as to costs. of these proceedings either here or in the Court below.