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2011 DIGILAW 965 (AP)

Marella Seetharavamma v. Marella Sridhara Babu

2011-11-08

L.NARASIMHA REDDY

body2011
Judgment : 1. The 1st respondent filed O.S.No.10 of 2008 in the Court III Additional District Judge (Fast Track Court), Ongole against the petitioners and the 2nd respondent for the relief of declaration to the effect that he is the owner of one-third share in the suit schedule properties and for recovery of possession of the same. 2. The background, in brief, is that one Mr.Marella Rattaiah was allotted one-third share of the schedule properties in O.S.No.18 of 1980 in a preliminary decree passed by the Court of Additional Senior Civil Judge, Ongole. He is said to have executed a will, dated 17.01.1996 in favour of the 1st respondent bequeathing his share of the property and died thereafter. On the basis of the will, the 1st respondent filed I.A.Nos.1901 of 2000 and 1902 of 2001 in the final decree proceedings of that suit with a prayer to implead him in the proceedings and for allotment of his share. The applications were allowed by the Court of Additional Senor Civil Judge, Ongole. The husband of the 1st petitioner, who was a party to that suit, filed C.R.P.Nos.855 and 857 of 2002 against the orders passed in the I.As. referred to above. The revisions were allowed by this Court on 03.04.2003 and the orders passed in the I.As. were set aside. It was however left open to the 1st respondent to enforce his rights under the will by instituting a separate suit. 3. The 1st respondent presented the plaint for the relief of declaration of his title under the will and for recovery of possession in the Court of III Additional District Judge, (Fast Track Court), Ongole on 27.04.2006 together with an application under Order 33 Rule 1 C.P.C. to permit him to sue as an indigent person. After conducting enquiry as required in law, the trial Court refused the permission. Thereafter, the 1st respondent paid the Court fee and the suit came to be numbered as O.S.No.10 of 2008. 4. The petitioners filed I.A.No.330 of 2010 under Rule 11 of Order 7 C.P.C. with a prayer to reject the plaint in O.S.No.10 of 2008. Their plea was that the suit is barred by limitation, if the time is properly reckoned. Thereafter, the 1st respondent paid the Court fee and the suit came to be numbered as O.S.No.10 of 2008. 4. The petitioners filed I.A.No.330 of 2010 under Rule 11 of Order 7 C.P.C. with a prayer to reject the plaint in O.S.No.10 of 2008. Their plea was that the suit is barred by limitation, if the time is properly reckoned. It was pleaded that the limitation for filing the suit started from 30.04.2003, the date on which this Court allowed C.R.P.Nos.855 and 857 of 2002 and it ought to have been filed within three years from that date. According to them, the suit can be said to have been filed in the year 2008, when the 1st respondent paid the Court fee and it was clearly barred by limitation. 5. The 1st respondent opposed the application by filing a counter. It is stated that the suit was filed within the period of limitation and that the plaint cannot be rejected. The trial Court dismissed the I.A. through order, dated 28.07.2011. Hence, this revision. 6. Sri T.Sreedhar, learned counsel for the petitioners submits that two dates assume significance viz., 30.04.2003, on which this Court dismissed C.R.P.Nos.855 and 857 of 2002 leaving it open to the 1st respondent to work out his remedies by instituting a separate suit and 27.04.2006, on which the 1st respondent instituted the present set of proceedings. 7. As observed earlier, the suit was presented by the 1st respondent as an indigent person. The enquiry into the financial status of the 1st respondent took about two years and ultimately, the trial Court declined the permission. Thereupon, the 1st respondent paid the Court fee and the suit was numbered in the year 2008. The petitioners are under the impression that the suit can be said to have been instituted on the day, on which it was numbered or at least on the day, on which he paid the Court fee. 8. If the suit were to have been instituted for the first time in the year 2008, it would undoubtedly have been barred by limitation, since three years from 30.04.2003 had expired. In fact, the 1st respondent presented the proceedings as an indigent person on 27.04.2006 which is within three years from 30.04.2003. 8. If the suit were to have been instituted for the first time in the year 2008, it would undoubtedly have been barred by limitation, since three years from 30.04.2003 had expired. In fact, the 1st respondent presented the proceedings as an indigent person on 27.04.2006 which is within three years from 30.04.2003. The doubt as to whether the proceedings by an individual as an indigent person can be said to have been instituted on the date of presentation of the proceedings, at the initial stage; or the date on which they are numbered either on being accorded permission or when the court fee is paid, after the permission is declined, is clarified by the Parliament itself by inserting Rule 15A in Order 33 C.P.C. It reads as under: 9. 15A. Grant of time for payment of court-fee:-Nothing contained in rule 5, rule 7 or rule 15 shall prevent a Court, while rejecting an application under rule 5 or refusing an application under rule 7, from granting time to the applicant to pay the requisite court-fee within such time as may be fixed by the Court or extended by it from time to time; and upon such payment and on payment of the costs referred to in rule 15 within that time, the suit shall be deemed to have been instituted on the date on which the application for permission to sue as an indigent person was presented. 10. Order 33 of C.P.C. mandates that once an application is filed seeking permission to institute proceedings as an indigent person, an enquiry into the financial status of the claimant has to be undertaken. In case, permission is accorded, the suit shall be numbered and the application shall be deemed to be plaint in the suit, except that the plaintiff need not pay court fee. A perusal of Rule 8 of Order 33 C.P.C. makes this aspect clear. Rule 15 C.P.C. provides for the consequences that flow on account of the refusal to allow an applicant to sue as an indigent person. Rule 15-A C.P.C. enables the Court to grant time to pay the requisite fee in the event of permission being declined. Once the court fee is paid within the stipulated time, the suit shall be deemed to have been instituted on the day on which the application was presented. 11. Rule 15-A C.P.C. enables the Court to grant time to pay the requisite fee in the event of permission being declined. Once the court fee is paid within the stipulated time, the suit shall be deemed to have been instituted on the day on which the application was presented. 11. Therefore, the very assumption of the petitioners that the suit must be deemed to have been presented on the day on which the Court fee was paid or that it was numbered, is opposed to the specific language of Rule 15-A of C.P.C. 12. Therefore, the civil revision petition is dismissed.There shall be no order as to costs.