SHRI BALBIR SINGH Vs. SHRI PEHLAD SINGH

JUDGEMENT

(1.) THIS appeal has impugned the judgment and decree dated 22.05.2007 which had endorsed the findings of the trial Judge dated 05.04.2005 whereby the suit filed by the Plaintiff Narain Singh seeking a declaration to the effect that the sale deed executed by him dated 15.09.1984 be declared null and void had been decreed in his favour. The trial Judge had held that the sale deed is vitiated by fraud, mis -representation and undue influence, the Plaintiff was entitled to the relief as prayed for by him. This finding as already noted was affirmed in the impugned judgment.

(2.) THIS is a second appeal. The thrust of the arguments of learned Counsel for the Appellant is that suit had initially been filed in forma pauperis i.e. a petition under Order XXXIII of the Code of Civil Procedure (hereinafter referred to as the "Code"). This application had been filed by Narain Singh in the year 1986. On 17.09.1987, this application under Order XXXIII of the Code had been withdrawn. This is evident from the record. The Court had dismissed this application on the averment of the Plaintiff that he was not pressing this application; liberty had been granted to the Plaintiff to file any such further application if the need so arises. On the same day i.e. on 17.09.1987, issues were framed in the suit and the matter was fixed for evidence. Record shows that the matter proceeded thereafter. On 16.09.2004, an application had been filed by the Plaintiff under Section 149 of the Code which was thereafter listed for arguments after notice to the Defendant. On 05.11.2004, the said application under Section 149 of the Code had been allowed and the Plaintiff had been granted two weeks time to pay the court fee. Court fee has since been paid.

(3.) RECORD shows that on 23.01.1986, the Plaintiff had filed the present suit. Along with the suit, an application under Order XXXIII of the Code had also been filed. On the first date of hearing i.e. 24.01.1986, the suit had been directed to be registered. Petition under Order XXXIII of the Code for permission to sue as forma pauperis had been taken on record and the statement of the Plaintiff had been recorded; thereafter the proceedings as noted hereinabove are admitted. On 17.09.1987, application under Order XXXIII of the Code had been withdrawn; admittedly the court fee had not been paid till 05.11.2004 when the application preferred by the Plaintiff under Section 149 of the Code had been allowed and the time of two weeks had been granted to the Plaintiff to pay the said court fee. It is also not in dispute that in the entire proceedings before the trial court as also the first appellate court, this argument had never been urged. This argument had been urged for the first time in the second appellate court. However, being a pure question of law, this Court deems it fit to hear arguments on this application.