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Judgment
Satyanarayana Rao, J.—This civil revision petition is filed by the plaintiff to revise the order of the learned District Munsiff of Hospet in I.A.
No. 248 of 1945 in O.S. No. 113 of 1945 disallowing an application for leave to amend the plaint. The plaintiff instituted the suit on the strength of
a sale deed dated 9th March, 1940, executed by the defendants in his favour for a declaration of his title to the plaint schedule mentioned
properties and for recovery of possession with mesne profits. The defendants raised the contention in their written statement that the document
executed in favour of the plaintiff was a nominal one and was also unenforceable. On 7th June, 1946, the plaintiff filed the application for leave to
amend the plaint by adding paragraph 8(a) in the plaint claiming an alternative relief for a decree for Rs. 828, the consideration which he claims to
have paid to the defendants under the sale deed.
The learned District Munsiff dismissed the petition on the ground that on the date the application was filed the claim for refund was barred by
limitation under Article 116 of the Limitation Act and also that the petition is not bona fide and the relief now claimed, according to his view, does
not flow from the cause of action already alleged in the plaint. The learned District Munsiff is clearly in error in applying Article 116 of the
Limitation Act for recovery of money by way of restitution u/s 65 of the Contract Act. The article that applies to the facts of the case if the
document is found to be void may be Article 97 of the Limitation Act but the more difficult question is, whichever article is applied, to fix the
starting point for limitation. According to the decisions of the Privy Council in AIR 1923 189 (Privy Council) and AIR 1933 63 (Privy Council) In
the case of a void document prima facie limitation begins to run from the date of the agreement. But in the earlier case in Harnath Kunwar v. Indar
Bahadur Singh (1922) 44 M.L.J. 489 : 1922 L.R. 50 IndAp 69 : ILR 45 All. 179 (P.C.) and in the later case in Rajah Mohan Manucha v.
Manzoor Ahmad Khan (1943) 1 M.L.J. 508 : L.R. 70 IndAp 1 : ILR 18 Luck. 130 P.C. their Lordships have not applied the rule strictly and
having regard to the special circumstances of each case their Lordships took different dates as the starting point for the commencement of
limitation. The question of limitation therefore has to be decided after evidence is taken. I do not propose now to decide the question of limitation
as the suit is not tried.
The learned District Munsiff has not given any reasons for holding that the petition is not bona fide. The alternative claim flows from the cause of
action already alleged in the plaint.
I therefore allow this civil revision petition, set aside the order of the learned District Munsiff and allow LA. No. 248 of 1945 and grant the
plaintiff leave to amend the plaint. The defendants will be at liberty to file an additional written statement in answer to the plea now permitted to be
raised. The costs of this application will follow and abide the result of the suit.