BALBIR SINGH Vs. MANJIT SINGH

JUDGEMENT

(1.) This revision petition is directed against the order dated October 24, 1992 whereby the request of the petitioner for summoning sale deeds from the possession of Gurnam Singh and Jasbir Singh has been declined by the trial Court.

(2.) Manjit Singh filed a suit against Balbir Singh on November 15, 1986, for the recovery of Rs. 43500/- as an indigent person. Limitation for filing such suit was upto April 30, 1987. The matter was still under consideration of the Court, as to whether the plaintiff was or was not an indigent person when the plaintiff on his own paid court fee on August 21, 1988, obviously in the absence of a finding that he was not an indigent person. Issues in the suit were framed on January 28, 1989. One of the issues is, whether the suit is with in limitation. The plaintiff appeared in the witness box and it was put to him, whether he sold the property through registered sale deeds, which are now sought to be produced from the possession of Gurnam Singh and Jasbir Singh, but the plaintiff stated that he cannot admit or deny execution of the sale deeds in the absence thereof. Plaintiff concluded his evidence and the defendant also got few opportunities to produce his evidence. On the last date of hearing, defendant moved an application praying therein that the sale deeds executed by plaintiff and now in possession of Gurnam Singh and Jasbir Singh be got summoned from the possession of those persons. The defendant perhaps wanted to prove the sale deeds in order to show that the plaintiff was not prosecuting the litigation in good faith and if that be so, the suit on the date the court fee was paid by the plaintiff, was barred by limitation. This application was dismissed by the trial Court which has been impugned in the present petition.

(3.) Learned Counsel for the petitioner relying upon Bashir Ahmad v. Shrimati Rashida Khatoon, 1975 AIR(All) 286 submitted that Section 13 of the Limitation Act only excludes the time during which the application to sue in forma paupers is bona fide prosecuted till its rejection from computing the limitation of suit or appeal. Learned Counsel in other words, wants to show, as noticed above, that the plaintiff was not bona fidely prosecuting the matter and, therefore, the period from November 15, 1986 to August 21, 1988 could not be excluded for purpose of bringing the suit within limitation. In order to prove that the plaintiff was not prosecuting in good faith or bona fide, the defendant wanted to produce the two sale deeds executed by the plaintiff and now in possession of the vendees to prove that the plaintiff sold some land shortly before the filing of the suit as an indigent person and, therefore, it could not be said that he was prosecuting the litigation in good faith. The question, whether plaintiff is entitled to exclude the period from November 15, 1986 to August 2, 1988 for purposes of limitation is to be gone into in the suit while deciding issue No. 4 already framed on the point. At this stage, it could not be said that the suit is barred by time or not. The defendant is leading his evidence and it is open to him to produce such evidence in support of the defence taken by him as may be permissible to him. The evidence is ultimately to be appreciated by the trial Court while returning finding on the issue framed regarding limitation. The trial Court declined the prayer of the defendant to summon the sale deeds only by observing that the sale deeds dated June 15, 1986 and June 6, 1986 are not at all in controversy. It is true that the sale deeds are not in controversy but the defendant by getting these sale deeds produced from the possession of Gurnam Singh and Jasbir Singh wants to show that the plaintiffs had not been prosecuting the litigation bona fidely or in good faith and consequently is not entitled to the exclusion of period from November 15, 1986 to August 21, 1988 for purpose of limitation. It could not be disputed that the suit if treated to have been filed on August 21, 1988 would be barred by limitation. Thus, a finding is required to be returned, whether the plaintiff was prosecuting the litigation in good faith and therefore, entitled to exclusion of period for purpose of limitation. In this context the defendant may be right in getting the two sale deeds produced in order to show that the plaintiff was not prosecuting in good faith. The trial Court thus acted illegally and with material irregularity in dismissing the application of the petitioner.