Yamuna Bai and another vs M. Parasuramaiah and others

Honourable Mr. Justice Narasinga Rao

This revision is directed against the order of the IV Additional Judge, City Civil Court, Hyderabad, whereby he permitted the plaintiff to sue in forma pauperis. The plaintiff brought a suit for the various reliefs including the recovery of past rents and profits from February, 1959 in a sum of Rs. 1,02,000/- and for an injunction against defendants 1 and 2 restraining them from with drawing the profit amounts deposited in O.S. No. 55/65 on the file of the same court and for future profits at the rate of 6000/- per year.

The case of the plaintiff in short was that the 3rd defendant entered into an agreement of sale with regard to pertain agricultural lands on 11-12-1958 and that he paid a part of the consideration. The terms of the contract were that the sale price is to be, calculated on measurement of the land, the rate was fixed at Rs. 1,400/- per acre for wet land and Rs, 900/- for dry land. Till the vendor obtaining the permission of the Collector for sale of the agricultural land, the vendor should cultivate the land on behalf of the vendee and for that purpose, he also received Rs. 300/- towards cultivation expenses and that he initially paid Rs. 700/-, that the remaining purchase amount was to be paid by the end of February, 1959 at the time of the execution of a proper Conveyance and delivery of possession. It is however the case of plaintiff that the 3rd defendant committed default in executing the proper conveyance and therefore the plaintiff laid the suit O.S. No. 9/62 for specific performance. That suit was decreed on 11-7-1963. As against that judgement the 3rd defendant filed an appeal, which appeal was dismissed by the High Court. While so, there was a suit O.S. 55/65 (as renumbered) filed in the year 1948 on the file of the IV Additional Judge, City Civil Court, Hyderabad, by one R.S. Chenoy for possession of the very suit land among other lands. To the said suit there are altogether five defendants, including defendants 3 to 5. The 5th defendant who is the mother of 3rd defendant was also a party to the said suit. That suit was decreed on 25-10-1968. The 3rd defendant got that decree assigned in favour of the present defendants 1 and 2, who, according to the plaintiff of this suit, are either his concubines or the friends of 3rd defendant. The assignment of that decree is said to be a benami one for the benefit of the 3rd defendant herein. In pursuance of the decree in O.S. No. 9/62 the plaintiff sought execution. In the said execution petition, defendants 1 and 2 also filed an E.A. objecting to the execution of the decree on various grounds. It would however transpire that the objections preferred by defendants 1 and 2 in the said execution petition, were over-ruled by the executive Court. Meanwhile, the 3rd defendant set up his mother as the owner of the suit properties and got filed another suit, i.e., O.S. No. 800/69 and the same was also dismissed on 14-7-71. Defendants 1 and 2 herein also filed another suit O.S. No. 538/71 to the effect that the decree passed against the 3rd defendant herein in OS. No. 9/62 is not blinding upon them. While the various proceedings are pending this suit is laid by the plaintiff claiming past and future mesne profits. The contention is that though the transfer of the suit lands was made in his favour by the 3rd defendant while the earner suit was pending, as the assignment of the decree in O.S. No. 55/65 in favour of defendants 1 and 2 is only a benami one for the benefit of the 3rd defendant here in, he is bound to make good the title of of the suit lands to the plaintiff. It is thus contended that defendants 1 and 2 on account of the assignment of the decree, are only in the position of trustees for the plaintiff and therefore are are liable to restore the profits to him. The plaintiff also alleged that he is an indigent person not having means sufficient to enable him to pay the court fee. At this stage only this question was adverted to by the trial court. This petition to permit the plaintiff to sue in forma pauperis was opposed to by defendants 1 and 2 interalia alleging that in view of the pendency of OS. No. 55/65 it was not competent to the 3rd defendant to alienate the suit properties which were the subject matter of O.S. No. 55/65 and therefore the decree obtained by the plaintiff O S. 9/62 is inoperative and invalid. It was also denied that the assignment of the decree in favour of defendants 1 and 2 was a benami one. In short the contention is that defendants 1 and 2 did not held that property as trust in favour of the subsequent purchaser. It was thus alleged that there is no cause of action for the suit. The other contention is that the plaintiff''s wife owns a house in her name and therefore the plaintiff cannot be said to be an indigent person. It was alternatively contended that in O.S. 9/62 the very 3rd defendant deposited a suit of Rs. 3000/- as per the terms of the decree and that the said sum is lying to the credit of O.S. No. 9/62 and that this plaintiff was entitled to withdraw that amount and if that amount is withdrawn, the plaintiff cannot be said to be an indigent person and that would enable him to pay the necessary court fee in this case in a sum of Rs. 3526/-. It was also contended by the defendants that prima facie the claim for profits beyond three years is barred by limitation and therefore the trial court ought to have rejected the petition on the very face of it.

The learned Addl. Judge found that as per the plaint averment, the petitioner can be said to have cause of action and the fact whether the assignment of decree in O.S. 55/65 was only benami one for the benefit of the 3rd defendant is a question to be decided in the suit itself. It also held that the property held by the wife of the petitioner cannot be said to be the means of the petitioner himself so as to hold that he is not an indigent person. Even with regard to limitation it was held that even as per the Plaint averments, a part of the plaint claim cannot be said to be barred by limitation. What reliefs are barred by limitation is again a question to be gone into when the trial of the suit is taken up. In this view of the manner he allowed the plaintiff to sue in forma pauperis. The aggrieved defendants have preferred this revision petition.

At the outset it was strenuously contended that there was no cause of action for the suit in the sense that the very contract of sale in regard to the suit lands which are part of the subject matter of O.S. No. 55/65 was hit by the doctrine of Lis pendens and therefore the said sale or agreement of sale is invalid and the decree that ensued is equally unenforceable and void. It is now well settled that any transaction in regard to a property which is the subject matter of a suit, made pending that suit is not altogether a void transaction but only a voidable transaction. It cannot therefore be said that the claim of the plaintiff based on the decree in O.S. No. 9/62 is altogether a void one. His case is that the assignment of the decree in O.S. No. 55/65 in favour of defendants 1 and 2 herein was only managed by the 3rd defendant and that in fact the beneficiary of the assignment is the 3rd defendant himself. Whether the truth it was a benami transaction or not need not be gone into at this stage, as it is certainly a complicated issue which can only be gone into at the trial. The only thing that can be gone into at this stage is whether the plaintiff has a cause of action for the suit, or not. The defence set up by the defendants is not relevant at this stage. It is held in Vijai Pratap vs. Dukh Haran Nath (sic) S C. 941 as under :

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 defences which the defendant may arise 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.

It is therefore not necessary to go into the details of the defence set up at this stage. Prima facie it cannot be said that the plaint does not disclose a cause of action.

In the same strain it was contended that even according to the plaint averments, the clam for mesne profits could not be for a period beyond three years and that if the claim is restricted to three years, the court fee to be paid there on would not be much and that the plaintiff can equally pay the same amount and he cannot be said to be an indignant person. It van be seen that the plaint contains reliefs such as an injuction restraining the defendants 1 and 2 from receiving the amount deposited by the 4th defendant in O S No 55/65 pending that suit and also for future profits. The (sic) of the petitioner as shown in the annexure to the petition only amount (sic) 5901 That apart, when apart of the claim is to be held as barred by limitation, it is not as though the whole petition is to be thrown out. What are all the claims that are barred by limitation is again a matter which can be gone into at the time of the trial. Since it cannot be said that the whole claim of the plaintiff is barred, the petition cannot be thrown out.

It was lastly contended by the learned counsel for the revision petition that the plaintiff is possessed of sufficient means to enable him to pay the court fees. In this context he relies upon the fact that the plaintiffs wife owns a house and this fact is borne out by the Municipal record. This house is assessed to a municipal tax of Rs. 3000/- per annum. The contention is that the rent from this house cannot be not less then Rs. 2000/- per month. It is contended that lower court erred in holding that the house does not enure for the benefit of the petitioner plaintiff. There is no presumption that any property held by the wife belongs to her husband. No material whatsoever is placed that the property held by the wife is only a benami one. The other contention in this regard raised by the revision petitioners is that admittedly a sum of Rs. 3000/- lies to the deposit of O.S. 9/62 and that the plaintiff herein as a plaintiff in that suit is entitled to the amount At the outset it was contended that the plaintiff petitioner ought to have disclosed this asset. The contention of the plaintiff-petitioner is that if he were to withdraw that amount, his claim for specific performance would get whittled down and therefore he was not under an obligation to withdraw that amount and the mere deposit to the credit of that suit therefore does not show that the amount is lying to the credit of the plaintiff. I find myself in agreement with the contention of the learned counsel for the plaintiff petitioner (Respondent) that it was not obligatory for the plaintiff to withdraw that amount so as to pin him down and thereby give up the fruits of that decree by way of specific performance. In this view of the matter it cannot be said that the plaintiff was guilty of suppression of some assets which would enable him to pay the requisite court fee. As there is no suppression and as there is no lack of good faith on his part, the petition does not merit rejection under Order 33 rule 5 of the C.P.C Suffice it to say on the averments of the plaint, that there is apparently cause of action and the whole claim of the petitioner is not barred by limitation. Therefore the petition to such in forma pauperis cannot be rejected at all. The view of the trial court therefore merits affirmance... The revision petition fails and it is accordingly dismissed, but without costs.