VEERABADRA PILLAI Vs. RAJESWARI VADACHALAM

JUDGEMENT

(1.) THIS is an appeal against the order of the Principal Subordinate Judge, Cuddalore, rejecting the appellant's petition for permission to sue in forma pauperis on the ground that under Order 33, Rule 5(d -1), Civil Procedure Code, as amended in Madras, the suit "appears" to be barred by the law of limitation. The learned Subordinate Judge rejected the petition in limine even before ordering notice to the respondent. In fact, the petition was filed in Court on 5th April, 1972 and on the very next day, that is, on 6th April, 1972, he passed an order rejecting the petition with unholy hurry. One wonders why in the circumstances of the case, he should not have ordered notice and come to a decision after hearing the respondent. The anxiety to fulfil the demands of statistics appears to have precipitated the ill -conceived order of the learned Subordinate Judge.

(2.) IT is necessary to state a few facts before considering whether the petition of the appellant "appears" to be barred by any law (in this case, by the law of limitation). The appellant Veerabadra Pillai was a clerk in the Gingee Branch of Burmah -Shell Depot of the respondent, Rajeswari Vedachalam, who is a permanent resident of Chingleput. The appellant alleged that he was a clerk for the period from 1952 to 1956. G. Venkatrama Naidu, who is the Manager of the respondent, is alleged to have taken the appellant in 1965 from Gingee to Chingleput and accused him of having misappropriated respondent's money to the tune of Rs. 24,858. The appellant further alleged that Venkatrama Naidu wrongfully confined him at Chingleput for 3 days and by practicing fraud and undue influence upon him and his wife Andal Ammal, obtained two documents on the unwarranted basis that the appellant had swindled respondent's money to the tune of Rs. 24,858. The first document that Venkatrama Naidu obtained was a sale deed from Andal Ammal, the wife of the appellant, in respect of her house in favour of the respondent for Rs. 8,000. The second document was a promissory note for Rs. 9,672 -51 obtained from the appellant and his wife, Andal Ammal in favour of the respondent. The appellant's wife instituted O. S. No. 23 of 1967 on the file of the Court of Subordinate Judge, Cuddalore, for a declaration that the sale deed executed by her had been obtained by coercion and undue influence, for cancellation of the same and for recovery of the property sold with mesne profits. On the other hand, the respondent instituted O. S. No. 144 of 1968 on the file of the Court below against the appellant and Andal Ammal for recovery of monies due under the promissory note executed by the appellant and Andal Ammal on 20th July, 1965. In both these suits the appellant and his wife contended that no money was really due by the appellant to Rajeswari Vedachalam because the former had not in fact misappropriated any moneys be -longing to the latter, that the promissory note and the sale deed had been obtained by coercion and undue influence on the false representation that the appellant had committed misappropriation and that they were, therefore, void. The Court accepted the case of the appellant and his wife and by judgment dated 22nd October, 1971, granted a decree in O.S. No. 23 of 1967 setting aside the sale deed executed by Andal Ammal in favour of Rajeswari Vedachalam and dismissed with costs O. S. No. 144 of 1968, which Rajeswari Vedachalam had filed for recovery of the money due under the promissory note. It is true that Rajeswari Vedachalam has preferred appeals against these two judgments and those appeals are pending.

(3.) THE learned Subordinate Judge in a laconic order held that this claim was barred under Article 113 of the Limitation Act of 1963, because it had not been filed within three years from the date of the agreement of sale of the lorry. It appears from the order that the pauper petitioner was not heard on the question of limitation, nor was his advocate given a hearing.