S G THIMMAPPA Vs. T ANANTHA

JUDGEMENT

(1.) This appeal is filed by the petitioner in P. Mis. No. 666 of 1983, on the file of the XII Additional City Civil Judge, Bangalore, challenging the order passed on 27-1-1982. The said application was filed for seeking permission to file the suit as an indigent person. The same has been rejected on the ground that the suit brought by the plaintiff is barred under O 23 R 3A of the Code of Civil Procedure. The order of rejection is passed under Cl. (f) of O 33 R 5 CPC.

(2.) Few facts which are necessary to appreciate the points in controversy are as follows : Petitioner is the husband of respon- dent-4 - A. Lakshmi; Respondents-2 and 3 are his minor sons: ;md respondent-1 is his father-in-law, who is an Advocate. The petitioner was an adopted son in an affluent family. The adoptive mother died on 2-1-1979. During her life time, petitioner and respondent-4 were married on 8-5-1970. After the death of the adoptive mother, respondent-4, on her behalf and also acting on behalf of her two minor sons namely, respondents 2 and 3, instituted a suit in O.S.No.187 of 1979, on the file of the Principle Civil Judge, Bangalore District, Bangalore. The defendant in the said suit was the petitioner namely, the husband of the first plaintiff. The father-in-law (advocate) was not a party to the said suit but the suit was filed by him, acting as an advocate, on behalf of the plaintiffs who were his daughter and grand children. The said suit was filed on 29-8-1979. In the prayer portion, the following reliefs were claimed in the said suit :

(3.) The schedule, given to the plaint, mentions three houses situated in Arcot Srinivasachar Street, Chamarajpet and Maistry Yellappa Galli, Chickkamavalli in Bangalore City and S.No.33 measuring 6 acres of Anugondanahalli hobli, Hosakote taluk. These three houses in Bangalore town and the agricultural land measuring 6 acres, were valued at Rs. 10,000/- and a fixed Court fee of Rs. 200/- was paid under Section 35 (2) of the Karnataka Court Fee and Suits Valuation Act. It is to be mentioned, that the first plaintiff-mother did not file a separate application to permit her to act as next friend, nor did she make any specific allegation against the defendant who was the father of the minor children, indicating his adverse interest. The said suit was posted to 22-9-1979. On 19-9-1979, the plaintiffs, through their advocate, who was no other than the father of the first plaintiff and grand-father of plaintiffs 2 and 3 in that suit, filed an application to advance the date, of hearing. Thereafter the date was preponed; and on 19-9-1979 itself a compromise petition was filed, signed by the plaintiff, her father who acted as an advocate, and the defendant and his advocate. The advocate appearing on behalf of the plaintiff, gave a certificate to the effect that the compromise was in the interest of the minors. On the said date namely, 19-9-1979, the matter was posted before the Court and it was ordered that the decree in terms of the compromise be drawn up and the compromise was made part of the record. It is thereafter that the present suit is filed alleging that the compromise decree was vitiated by fraud and undue influence