Eradala Tayaramma and another vs Eradala Ramakrishnayya and others

This appeal is directed against the order dated 30-6-1989 in OP No.32 of 1984 on the file of the Subordinate Judge, Gudivada, dismissing the above said OP on the ground that the previous findings in OS No.316/70 dated 30-10-1974 against which AS No.400 of 1975 was dismissed by the High Court which was filed by the same parties in the above suit and LPA No.94 of 1978 was also dismissed by the High Court, are thus binding and therefore, the above judgment operates as res judicata in the proposed suit of petitioners, the petitioners have no cause of action to file the suit after the disposal of the previous litigation in the High Court. The learned Subordinate Judge has further observed that the present petition is abuse of process of law.

The facts of the case are that the said OP was filed under Order 33, Rule 1 CPC, to permit the petitioners, who are mother and daughter, to file the suit as indigent persons on the ground that they do not possess any properties except those mentioned in ''B'' and ''C'' schedules.

The above OP was resisted by the respondent Nos.2, 10 and 11 by filing counters. The counter filed by respondent No. 10 was adopted by the respondent Nos.7 to 9, contending inter alia that the petitioners have got stridhana gold jewellery to the extent of 25 sovereigns each and they have got money and have been carrying on money lending business, besides running chit funds and that as the suit is a speculative suit the petitioners are not venturing to pay Court fee inspite of having means and capacity to pay and that the suit is not maintainable on the ground of res judicata and estoppel and that the decision in OS No.20 of 1968 on the file of the District Munsif, Gannavaram became final and that the status of the petitioners was finally decided in OS No.316 of 1970 by the Subordinate Judge, Vijayawada, which was confirmed in appeal AS No.400 of 1975 by the High Court; which decision was further confirmed by a Bench of the High Court in LPA No.94 of 1978.

The Court examined petitioners as PWs.1 and 2 respectively and also examined one Devvupareddi Venkata Krishna Rao as PW3 on their behalf.

The Court framed the point for consideration as to whether the petitioners have to be permitted to file the suit as indigent persons?

The petitioners contended that the second petitioner is the daughter of the first petitioner and the fourth respondent is also the daughter of the first petitioner. The respondents 5 and 6 are the sons of the first petitioner. The petitioners 1 and 2 claimed that the first petitioner is the wife of Eradala Ramachandrayya the second petitioner is his daughter, who claimed to be the legal heirs of Ramachaniraiah, The petitioners 1 and 2 intended to file the suit for partition of ''A'' schedule properties and they have questioned the Gift-Deed dated 20-7-1954 and also the partition deed dated 21-7-1961. The petitioners allege that the previous proceedings were not conducted on their behalf properly by playing fraud on them, the petitioners did not file any suit for setting aside the decree in the previous proceedings on the ground of fraud. The petitioners 1 and 2 have deposed that they have no means to pay the Court fee and they are eking out their livelihood by doing coolie work. They have denied the allegation of the respondents that they have 25 sovereigns of gold each. Ramachandrayya, who filed OS No.316 of 1970, though in this suit, the first plaintiff was shown as a defendant, he himself acted as the guardian and next friend of her minor Children, Varalakshmi and Rama Vara Prasad, he got them always represented by an Advocate even in appeals but no defence was made on the averments made against them or the adverse findings in the Court below. The first defendant in the present OP posing as a next friend of" the first petitioner-here in and her children, got their signatures and thumb-marks wherever and whenever he wanted, and he so managed that the wife and children of his brother did not get even a cent of land out of the vast joint family properties. The partition deed dated 21-7-1961, is a magnificent piece of fraud practised by the first respondent, Rama Krishnayya. Therefore, when the judgment was obtained by playing fraud, Section 11 of the CPC (for short the Code) does not operate as resjudicata.

On the basis of the above facts and circumstances of the case, the learned Counsel for the appellants submitted that the Subordinate Judge, Gudivada, has committed an error in dismissing the above OP on the ground of the principle of res judicata is contrary to the provisions of Section 11 of the Code, when the decree was obtained by playing on the Court and therefore, he should have allowed the above OP 32 of 1984. He further contended that the Court below should have appreciated the contentions of the appellants-petitioners that they have no means to pay the Court fee or not, but the Court below without giving a specific finding on that aspect whether the petitioners-appellants can pay the Court fee or not, has gone into the merits of the case and applied the principle of res judicata and dismissed the OP ignoring the provisions of Order 33, Rule 1 of the Code and therefore, the impugned order is liable to be set aside.

Order 33, Rule 1 of the Code contemplates initiation of suits by indigent persons when the person is not possessed of sufficient means. Rule 1A thereof, which was inserted by the Amending Act, 1976, contemplates that every inquiry into the question whether or not a person is an indigent person shall be made, in the first instance, by the Chief Ministerial Officer of the Court, unless the Court otherwise directs, and the Court may adopt the report of such Officer as its own finding or may itself make an inquiry into the question. The Rule provides that the inquiry whether the applicant is an indigent the person in the first instance, shall be made by the Chief Ministerial Officer of the Court, unless the Court otherwise directs. The Court has been given the power to adopt the report of such Officer as its own finding or itself to hold an independent enquiry. The object of Order 33, Rule 1 and Order 44, Rule 1 of the Code is to enable an indigent person to lay an action in a Court to vindicate his rights and when he proves that he is not possessed of sufficient means to pay the requisite Court fee, an enablement is provided by the Code by permitting him to prosecute the proceedings without paying Court fee.

In the instant case, both the petitioners have deposed that they have no means to pay the Court fee as prescribed by law and that they have no properties and they arc eking their livelihood by doing agricultural coolie work. The Court below instead of accepting their assertion, without giving any finding whether the petitioners are having means to pay the Court fee, dismissed the said OP on the ground that the previous judgments operate as resjudicata.

Further Section 11 of the Code contemplate when the decree is obtained by playing fraud, the principle of res judicata is not applicable. Fraud is an extrinsic collateral act, which vitiates the most solemn proceeding of the Courts of justice. If a party obtains a decree from the Court by practising fraud or collusion, he cannot be allowed to say that the matter is res judicata and cannot be re-opened. 1 here can be no res judicata in a case where a party seeks to set aside a decree on the ground of fraud or collusion.

If we take the contention of the petitioners, Rama Krishnayya, respondent No.1 has "played fraud styling himself as the next friend of the first petitioner and her children and obtained their signatures and thumb marks and without allowing them to make their defence in the previous litigation, allowed the proceedings to go on and to attain finality. Therefore, taking into consideration the two grounds urged by the learned Counsel for the appellants, that the appellants-petitioners have no means to pay the Court fee, as prescribed under law, and the judgment and decree in the previous litigations, do not operate as res judicata, as they were obtained by playing with regard to the capacity of the petitioners to pay Court fee or not and rejected the claim, I am of the considered view that it is contrary to the provisions of Order 33, Rule 1 CPC, and that too without making any enquiry either by itself or by the Chief Ministerial Officer of the Court.

With regard to the second ground that it is the case of the appellants that the earlier judgment and decree was obtained by playing fraud by the first defendant-respondent, therefore, it does not attract Section 11 of the Code and hence, the dismissal of the OP on the ground of res judicata is bad in law, and that too without considering the oral and documentary evidence adduced by the appellants with regard to their means, or otherwise, to pay the Court fee, as prescribed under law.

Thus, viewing from any angle, I am satisfied that the petitioners have no means to pay the Court fee and that the principle of res judicata does not come in the way in filing of the said suit for partition of the properties.

The learned Counsel for the respondents submitted that the litigation is pending right from 1968 onwards and therefore, there must be some end to the litigation.

It is a recognised principle that to put an end to the litigation, the rights of the parties cannot be curtailed. Therefore, I do not agree with the submissions made by the learned Counsel for the respondents.

Therefore, for the aforementioned reasons, the appeal has to be allowed and it is accordingly allowed. But in the circumstances without costs.