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1956 DIGILAW 16 (KAR)

KAMALAMMA v. VENKATASWAMAPPA

1956-03-19

H.HOMBE GOWDA

body1956
( 1 ) THIS is an application filed by the Petitioner under Order 44 rule 1 of the Code of Civil Procedure for permission to file an appeal against the judgment and decree of the First Additional district Judge, Bangalore, in O. S. No. 112 of 1951-52, in forma pauperis. ( 2 ) THE Petitioner was the Plaintiff in the Court below and had sought for cancellation of the sale deed dated 26-2-1951 executed by her in favour of the respondent and relating to the plaint schedule property on tbe ground that it was a false, fraudulent and nominal document. She had also sought for delivery of possession of the plaint schedule property from the respondent with mesne profits. The respondent resisted the claim of the petitioner and contended among other things that he was the absolute owner of the property having purchased it from its previous owner for valuable consideration on 10-5-1947 but had got the sale deed nominally executed in the name of the petitioner, who was his wife and that the petitioner had subsequently willingly executed the deed dated 26-2-1961 which though was styled as a sale deed was really a deed of declaration of his title. He denied that he had practised any fraud or undue influence on the petitioner and secured the sale deed from the petitioner. The learned District Judge held, on the evidence adduced by the parties, that it was the respondent that had paid the consideration and purchased the property from its previous owner on 10-5-1947 and the sale deed in the name of the petitioner was benami for the respondent. He held further that the petitioner had failed to establish that the sale deed dated 26-2-1951 executed in favour of the respondent was tainted with any fraud or was the result of undue influence practised by the respondent on her and dismissed the suit. It is to prefer an appeal against the said decision in forma pauperis that the present petition has been filed by the petitioner. It is to prefer an appeal against the said decision in forma pauperis that the present petition has been filed by the petitioner. ( 3 ) IT was urged by Sri E. Kanakasabhapathy, the learned counsel for the petitioner, that the findings of the learned District judge are the result of gross misappreciation of the evidence on record; that there is very good evidence to come to the conclusion that it was on account of the fraud and undue influence practised by the respondent on the petitioner that she executed the sale deed dated 26-2-1951 in his favour. ( 4 ) HE also urged that the evidence on record further proved that the consideration amount for the sale deed dated 10-5-1947 was paid by the petitioner from out of the funds made over to her by her father and that the financial position of the respondent was not sound enough on that date to enable him to pay such a large amount and purchase the property from out of his own funds. It is conceded by the learned counsel for the petitioner that there is no substantial question of law or any question relating to the application of the article of Limitation Act involved in the case. ( 5 ) BUT he contends that erroneous findings of the lower court based on gross misappreciation of the evidence are sufficient to grant permission to the petitioner to prefer an appeal against the judgment and decree. Here the matter is made clear to my mind by the proviso to Order 44 Rule 1 of the Code of Civil procedure which reads thus : "provided that the Court shall reject the application unless, upon a perusal thereof and of the judgment and decree appealed from, it sees reason to think that the decree is contrary to law or is otherwise erroneous or unjust. " ( 6 ) THEREFORE in considering this application to prefer an appeal in forma pauperis this Court can only look into the application filed by the petitioner and the judgment and decree and on perusal of them if the Court comes to the conclusion that the decree of the lower court is not contrary to law or is not otherwise erroneous or unjust, then the Court is bound to reject the application. The Proviso to Order 44 Rule 1 of the Code of civil Procedure extracted above gives the Court no option. ( 7 ) THE learned Advocate for the petitioner strongly relied upon in re. Peram Chennamma, A. I. . R. 1931 Mad. 198 in support of his contention that this Court can peruse the evidence on record to find out as to whether the conclusions arrived at by the learned District Judge are based on proper appreciation of the evidence adduced in the case Apart from the fact that the above decision was dissented from in a later decision of the Madras High Court in Narayana rao v. Veeraiayya, I. L. R. 56 Mad. 523 and by this Court in a number of decisions, the facts disclose that the trial Court in that case had dismissed the plaintiff's suit holding that the claim was barred under article 93 of the Limitation Act. The question for decision in that case was whether it was Article 93 of the Limitation Act as held by the Court below or Article 144 or Article 142 as contended by the appellant that was applicable to the case. As a matter of fact the trial Court after disscussing the question at great length and referring to various authorities had held that the decision in narayana Chetti v. Kannamai Achi, I. L. R. 28 Mad. 338 though supported the plaintiff's contention had been inpliedly overruled as a result of certain later cases of the Madras High Court. In those circumstances the High Court held the appeal raised a substantial question of law and permitted the petitioner to prefer an appeal in forma pauperis. The following observations of Venkatasubba rao J. make this point abundantly clear :"in other words the appeal raises a substantial question of law and we cannot foretell what view the Bench disposing of the appeal may take after hearing arguments on both sides. To decide the point at once would be to prejudice the appeal. It is unreasonable to hold that Order 44 Rule 1 compels us to adopt such a course. . . . . . . . . It is unnecessary in our opinion that the court should arrive at a definite and final conclusion. "in the instant case there is no substantial question of law. It is unreasonable to hold that Order 44 Rule 1 compels us to adopt such a course. . . . . . . . . It is unnecessary in our opinion that the court should arrive at a definite and final conclusion. "in the instant case there is no substantial question of law. ( 8 ) THAT the powers of aa appellate court in dealing with applications for permission to appeal in forma pauperis are circumscribed by the terms of the proviso to Rule 1, Order 44 of the Code of Civil Procedure and the Court cannot look into anything more than the application itself and the judgment and the decree appealed from to see if the decree is contrary to law or is otherwise erroneous or unjust and cannot look into the evidence is the view that has been taken by this Court in several decisions. Reference in this connection may be made to re. Siddamma, 9 Mys. L. J. 412 wherein this Court held that the Court is bound to reject an application to appeal in forma pauperis unless upon perusal of the petition filed and of the judgment and decree appealed from it sees reason to think that the decree is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust and that a ground that there has been a misappreciation of evidence by the Court below resulting in an erroneous and unjust decision is not one coming within the purview of the proviso to Order 44 rule 1 of the Code of Civil Procedure. In re Alathur Krishnappa, 11 Mys. L. J. 273 after reviewing all the decisions of the several other High Courts this court accepted the dictum laid in the case Re. Siddamma (1) and quoted the following passage with approval:"we cannot consider such a ground (mere misappreciation of evidence) as doming within the purview of the proviso as otherwise in every case where an unsuccessful party files an appeal he can contend that the erroneous decision was reached by a misappreciation of evidence and that this he should be permitted to show by a perusal of the evidence recorded. In that case we would be invited not only to peruse the petitioner's application and the grounds of appeal and the judgment and decree of the lower court which the Code requires us to do but also the evidence which the Code does not require us to do". The court ultimately rejected the application filed by the petitioner in that case. ( 9 ) AGAIN In the case of Ameer Alikhan and another, 13 Mys. L. J. 192 after discussing the several decisions of the several Indian High Courts and of this Court, it was held that this Court was entitled to peruse only the application, judgment and decree to ascertain as to whether the decree of the lower court was either contrary to law or otherwise erroneous or unjust and nothing more. The words of the proviso to Order 44 rule 1 of the code of Civil Procedure are such that the Legislature must have intended to put some limit on the Courts to grant permission to litigants to prefer appeals in forma pauperis. Reference in this connection may be made to In re. Nanjappa Setty, 15 Mys. L. J. 90 wherein it is observed as follows:"the Code of Civil Procedure places a person who wishes to prefer an appeal in forma pauperis in an inferior position than an appellant who pays the court-fee. In cases of pauper appeals it may not be easy to compensate the successful party with costs to be paid by the pauper appellant. The proviso to order 44 Rule 1 of the Code is mandatory and unless upon a perusal of the application, the judgment and the decree appealed from the Court is satisfied that the decree appealed from is contrary to law or otherwise erroneous or unjust it is bound to dismiss the application. " ( 10 ) THE petitioner in this case has, therefore, no right to ask this court to go through the evidence adduced by the parties to find out as to whether the conclusions arrived at by the learned district Judge are due to misappreciation of the evidence or not. ( 11 ) I have perused the petition, judgment and decree appealed from and I am not satisfied that the decree is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust. As rightly observed in re. Alathur Krishnappa, 11 Mys. ( 11 ) I have perused the petition, judgment and decree appealed from and I am not satisfied that the decree is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust. As rightly observed in re. Alathur Krishnappa, 11 Mys. L. J. 273 no injustice can result by such strict adherence to the terms of the proviso and consequent refusal of leave to appeal in forma pauperis, as it is open to an applicant to pay the court-fee and ask the court to examine the entire records and to come to a conclusion. The special privileges conferred on a litigant by Order 44 rule 1 of the Code of Civil Procedure can be availed of by him only subject to the specific conditions imposed in the proviso. ( 12 ) IN my opinion there are no sufficient grounds to permit the petitioner to file the appeal in forma pauperis. This application is, therefore, dismissed. The petitioner is granted two months' time to pay the necessary court-fee. No costs. --- *** --- .