MADHURA KRISHNAMURTHY SASTN Vs. YERRA RAMAMURTHU

JUDGEMENT

(1.) This Civil Revision Petition is filed against the order of the learned District Munsif of Rajahmundry rejecting O.P. No. 2 of 1952 on his file under Order 33, rule 5, Civil Procedure Code. This original petition was at first presented to the District Court, Rajahmundry, on 26th February, 1949, by the present petitioner. He sought thereby leave to sue as a pauper for partition of the plaint A and B schedule properties into three equal shares by metes and bounds and for recovery of his share. He attacked alienations of these properties made in favour of the respondents 1 to 20 by his father (the 21st respondent to the petition) as having been effected without any legal necessity or benefit for the family and therefore not binding on him and the 22nd respondent, who is the brother. The petitioner therefore claimed the recovery of his third share of the alienated properties. He stated that he had attained majority on 26th February, 1946. The original petition was actually presented on 26th February, 1949, i.e., on the very last day of limitation. It was numbered as O.P. No. 36 of 1949 on the file of the District Court. Theie was an enquiry held into the petitioner's pauperism and the petition was ultimately directed to be registered as suit (O.S. No. 15 of 1950) in forma pauperis. It was, however, transferred from the file of the District Court to the file of the Sub-Ccurt, Rajahmundry, on the file of which it was renumbered as O.S. No. 110 of 1950. The 18th respondent filed I.A. No. 630 of 1951 in the Sub-Court, Rajahmundry, alleging that the properties in suit were over-valued and if they are properly valued, the suit would lie only in the District Munsif's Court having territorial jurisdiction. It may be noted that the plaint A schedule consists of lands which are acres 7-16 cents in extent, while B schedule consists of two items, (1) a house in Rajahmundry Municipality and (2) a site in a village in Rajole Taluk. The 1st item of the B schedule was valued by the petitioner at Rs. 10,000 and all the other items together both of the A and B schedules were valued at Rs.2,468. The petitioner's 1/3rd share therefore was put at Rs. 4,156 which was the value for the purpose both of Court-fee and jurisdiction. On the 18th respondent's application, an amin of the Court was appointed to investigate the value of item 1 of the B schedule and he assessed it at only Rs. 4,800. The result was that the value of the whole suit was reduced to Rs. 2,422-10-8, being the value of the petitioner's 1/3rd share in properties of a total value of Rs. 7,268. Consequently, the Sub-Court held that the proper Court having jurisdiction under section 15 of the Code of Civil Procedure was the District Munsif 's Court exercising jurisdiction locally and passed an order, dated 31st October, 1951, returning the plaint for presentation to the proper Court. It appears that the plaint was actually returned only on 14th November, 1951 and OP the same day it was presented to the District Munsif's Court, Rajamundry, by the advocate who had appeared for the petitioner (plaintiff) in O.S. No. 110 of 1950. A fresh enquiry has since been made by the District Munsif into the pauperism of the plaintiff and a finding has been recorded that he is a pauper. But, it was objected before the learned District Munsif by the 18th respondent that the proceeding ought to be treated as a fresh original petition for leave to sue as a pauper and as it was not presented by the petitioner himself as provided by the rules but by his advocate, the presentation was invalid. It was also urged that the original petition was liable to be rejected on the ground that the claim made therein was barred by time, as, in the circumstances of the case, section 14 of the Limitation Act could not be invoked by the petitioner for want of bona fides. The contention was that there was a deliberate over-valuation of the properties by the petitioner in order to make it appear that they were sold by his father for an inadequate price ; that it was that mala fide object that resulted in the presentation of the petition in a higher Court and that there was no bona fide mistake in regard to the value of the property. The learned District Munsif upheld both the objections. He held in regard to the first objection that though it was not necessary for the petitioner to have presented the O.P. which he, however, calls a plaint in person under Order 33, Civil Procedure Code, as the advocate who presented it did not file a fresh vakalat at the time of the presentation in the Muns.f's Court, the presentation was invalid. He held in regard to the second objection that the petitioner could not be said to have acted bona fide in presenting the Original Petition in the District Court on 26th February, 1949, as he had made no enquiry whatever regarding the correct market value of item 1 of the B schedule when he assessed it at Rs, 10,000 in the Original Petition.

(2.) Mr. Parthasarathi, the learned advocate for the petitioner, contends that on both the points, the learned District Munsif went wrong. It may be noted at this stage that a new vakalat was filed in these proceedings on 10th December, 1951 and that the petitioner also presented the petition in person on that date. Now as regards the bona fides of the valuation, it seems to me that the learned District Munsif is clearly wrong. Item 1 of the B schedule, it must be remembered, is a house situate in the Municipality of Rajahmundry. There is bound to be in the valuation of such an item, considerable difference of opinion. In the first instance, it does not appear that its value in the year 1951 (when it was determined to be Rs. 4,800 by the amin) was the same as that in 1949 when the petition was presented. Besides, P.W. 1 has sworn that he got the value estimated by a Town Planning Supervisor. This statement has not been contradicted on the opposite side.

(3.) It is true that according to the Full Bench decision in Gnanacharya Swamigal v. Saravana Perumal, (1941) 1 M.L.J. 257 : I.L.R. (1941) Mad. 347 (F.B.). the burden of establishing bona fide under section 14 of the Limitation Act is on the person seeking the benefit of that provision. But, when he gives a narrative of the events leading up to the presentation of the plaint in the wrong Court and there is nothing elicited in his cross-examination to rouse suspicion and when no evidence to the contrary is led by the opposite party, the Court should naturally draw an inference of bona fides, because, normally speaking, there is no presumption of mala fides. The learned District Munsif's remark that the petitioner made no enquiry regarding the correct market value of item 1 is it seems to me a material misstatement. As already pointed out, it is very difficult to arrive at J anything but an approximate value of a house in a town like Rajahmundry. The value depends upon quite a number of factors which may vary from year to year. The learned District Munsif totally ignored this aspect of the matter also. For these reasons, I hold that the petitionei must be taken to have established the fact that he bona jide presented the petition in a wrong Court and that he could invoke the aid of section 14 of the Limitation Act for the purpose of saving his claim from the bar of limitation.