EALAPU PALA SUBRAHMANAVAM Vs. TIGUTI VENKATA PEDDIRAJU

JUDGEMENT

(1.) The petitioner is the plaintiff in O.P.No 62 of 1965, Sub-Court, Kakinada, a suit filed in forma pauper is for recovery of possession of plaint A to C schedule properties. The Court below by its order d/ 2-3-1958 held that he had means to pay and rejected his application to sue informa paupuris. This order was confirmed by the High Court in Revision and thereafter, the petitioner restricted his right only to a half share and paid a court-fee of Rs.2.602/-.

(2.) Again, by his order d/25-2-1969 the learned Subordinate Judge held that the suit was barred by time in respect of items 1, 2 (a), 2 (b), 2 (c) and 3 (a) of plaint B schedule and items 1 and 2 (a) of plaint C schedule. He, therefore, rejected the plaint in respect of those items. As far as items 4 of plaint B Schedule was concerned, he directed the plaintiff to file an application to treat the relief regarding item 4 as one filed under Sec. 47 CPC The plaintiff has filed the above revision petition. The main contention of the petitioner is that the court below erred in holding that the suit was barred by limitation. The case of the plaintiff regarding most of the items is that the properties were brought to sale in execution proceedings and possession was taken by various defendants on various dates. Except in regard to item 3 (b) and 4 of B schedule and 2 (b) of C schedule in all other cases the date of dispossession is more than three years prior to the date of the suit even according to the plaintiff who has given the dates of dispossession In the plaint itself with regard to each of these items. The Court below was therefore, right in holding that even taking the averments in the plaint into consideration the suit was barred by time in respect of those items. In the order it is pointed out that the learned counsel for the petitioner was not in a position to say that the suit is in time. Even here the learned counsel for the petitioner was not able to satisfy me as to how the suil would be in time. In view of the case set out in the plaint that the properties were brought to sale and purchased in court auction and the plaintiff was dispossessed, it is obvious that Article 66 of the Limitation Act which is referred to in the grounds of Appeal has no application and that the proper article applicable is Article 113.

(3.) It was then argued that the suit is within time as the plaintiff was away in Hyderabad in 1958 and came to know of the fraud in obtaining of the decrees and in the execution proceedings only in May and June, 1965. This is not a relevant circumstance as according to his own case he was dispossessed on various dates in 1953, 1957, 1960 and so on. In the result, the court below was right in holding that the suit appeared to be barred by law (the law of limp tation) as far as these items are concerned. The Court, however, rejected the plaint only in respect of some of these items in regard to which it was of the view that the suit was barred by limitation and permitted the plaintiff to proceed with the suit in regard to other items and in respect of one item to file an application to convert it into a proceeding under Section 47 C.P.C. This procedure, in my view, is not warranted. When a court considers that a plaint is liable to be rejected in respect of a part, it is incumbent on the court to reject the plaint as a whole. It has no jurisdiction to reject the plaint in part and permit the suit to be continued with regard to the rest. This has been laid down in a number of cases, of which reference may be made only to Appa Rao. v, Secy. of State(1) affirming the decision in Venkata Rangaiah vs. Secy. of State(2) In Venkata Rangaiah vs. Secy. of State(2) Sundaram Chetty J following the decision in Raghubans puri vs. Jyotis Swarupthy(3) observed as follows ;-