K DODDANA GOWD Vs. ARALAPURADA SANKARAPPA

JUDGEMENT

(1.) This civil revision petition is filed by the plaintiff to revise the order of the learned District Munsiff of Hospet in I.A. No. 248 of 1945 in O.S. No. 113 of 1945 disallowing an application for leave to amend the plaint. The plaintiff instituted the suit on the strength of a sale deed dated 9 March, 1940, executed by the defendants in his favour for a declaration of his title to the plaint schedule mentioned properties and for recovery of possession with mesne profits. The defendants raised the contention in their written statement that the document executed in favour of the plaintiff was a nominal one and was also unenforceable. On 7 June, 1946, the plaintiff filed the application for leave to amend the plaint by adding paragraph 8(a) in the plaint claiming an alternative relief for a decree for Rs. 828, the consideration which he claims to have paid to the defendants under the sale deed.

(2.) The learned District Munsiff dismissed the petition on the ground that on the date the application was filed the claim for refund was barred by limitation under Art. 116 of the Limitation Act and also that the petition is not bona fide and the relief now claimed, according to his view, does not flow from the cause of action already alleged in the plaint. The learned District Munsiff is clearly in error in applying Art. 116 of the Limitation Act for recovery of money by way of restitution under Section 65 of the Contract Act. The article that applies to the facts of the case if the document is found to be void may be Art. 97 of the Limitation Act but the more difficult question is, whichever article is applied, to fix the starting point for limitation. According to the decisions of the Privy Council in Armada Mohan Roy V/s. Gour Mohan Mullick (1923) 45 M.L.J. 617 : L.R. 50 I.A. 239 : I.L.R. 50 Cal. 929 (P.C.), and Hansraj Gupta V/s. Official Liquidators, Dehra Dun, etc.(1932) 64 M.L.J. 403 : L.R. 60 LA. 13 I.L.R. 54 All. 1067 (P.C.). In the case of a void document prima facie limitation begins to run from the date of the agreement. But in the earlier case in Harnath Kunwar V/s. Indar Bahadur Singh (1922) 44 M.L.J. 489 : L.R. 50 I.A. 69 I.L.R. 45 All. 179 (P.C.), and in the later case in Rajah Mohan Manucha V/s. Manzoor Ahmad Khan (1943) 1 M.L.J. 508 : L.R. 70 I.A. 1 : I.L.R. 18 Luck. 130 P.C. their Lordships have not applied the rule strictly and having regard to the special circumstances of each case their Lordships took different dates as the starting point for the commencement of limitation. The question of limitation therefore has to be decided after evidence is taken. I do not propose now to decide the question of limitation as the suit is not tried.

(3.) The learned District Munsiff has not given any reasons for holding that the petition is not bona fide. The alternative claim flows from the cause of action already alleged in the plaint.