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Bashir Ahmad Vs. Shrimati Rashida Khatoon - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal From Order No. 227 of 1973
Judge
Reported inAIR1974All286
ActsLimitation Act, 1963 - Sections 13; Code of Civil Procedure (CPC) , 1908 - Order 33, Rules 5 and 7
AppellantBashir Ahmad
RespondentShrimati Rashida Khatoon
Appellant AdvocateS.J. Hyder, Adv.
Respondent AdvocateBashir Ahmad, Adv.
DispositionAppeal dismissed
Excerpt:
.....bench should if it is unable to accept as correct the principle laid down in an earlier division bench decision, refer the matter to a full bench is subject to certain well-known exceptions. a decision should not be treated as given per incuriam however, simplv because of a deficiency of parties, or because the court had not the benefit of the best argument, and, as a general rule, the only cases in which decisions should be held to be given per incuriam are those given in ignorance of some inconsistent statute or binding authority. in computing the period of limitation prescribed for anv suit or ap-peal in any case where an application for leave to sue or appeal as a pauper has been made and rejected, the time during which the applicant has been prosecuting in good faith in his..........bench should if it is unable to accept as correct the principle laid down in an earlier division bench decision, refer the matter to a full bench is subject to certain well-known exceptions. as pointed out in halsbury's laws of england, 3rd edition volume 22, paragraph 1967, pases 799-800 (which had been cited with approval in a judgment of the supreme court in jaisri sahu v. raidewan dubey : [1962]2scr558 . the exceptions are as follows:-- '(1) the court is entitled and bound to decide which of two conflicting decisions of its own it will follow: (2) the court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the house of lords (here supreme court) ; (3) the court is not bound to follow a decision.....
Judgment:

Ojha, J.

1. Smt. Rashida Khatoon, respondent, filed a composite plaint and an application to sue in forma pauperis on 14th March, 1969. The relief claimed was for cancellation of a sale deed dated 14th March 1967 and for recovery of damages in the alternative. The application for permission to sue in forma Pau-peris was rejected on 28th March 1970. The formal order reiecting the application was signed on 13th April 1970 and on the same date the Civil Judge permitted the plaintiff to make good the deficiency in court-fee bv 30th April 1970 Subsequently, the plaintiff made an application for amendment of the plaint seeking to change the valuation of the suit. This application was allowed and the court-fee payable on the amended plaint was paid on 20th Mav 1970. On payment of court-fee the case was registered as a suit. It was contested bv the defendant appellant inter alia on the ground that after the dismissal of the application to sue in forma Pauperis on 28th March 1970 the Civil Judge had no iuris-diction to grant time for pavment of court-fee by 30th April 1970 and that the suit was not maintainable and liable to be dismissed. A further plea was raised by the aPDellant to the effect that the suit was barred bv Order 33. Rule 15 of the Code of Civil Procedure. Among the issues framed Issue No. 5 was whether the plaint is not valid as alleged in para. No. 24 of the written statement and issue No. 7 was, whether the suit is barred bv Order 33, Rule 15, Civil P. C. These two issues were decided by the Civil Judge as preliminary issues. The Civil Judge recorded a finding against the plaintiff-respondent on 18th December, 1972. On the same date bv a separate order he dismissed the suit. The resoondent filed an appeal. The District Judge allowed the appeal and after setting aside the findings of the Civil Judge on issues Nos. 5 and 7 remanded the suit for being decided op merits on other issues in accordance with law after recording evidence of the parties. Aggrieved against that order the defendant has preferred the present First Appeal From Order.

2. When the First Appeal From Order came UD for hearing before a learned Single Judge of this Court it was urged that in view of the decisions of this Court in Chunna Mal v. Bhagwant Kishore : AIR1936All584 : Diven-dar Kumar v. Mahant Raghurai Bharti : AIR1955All154 ; Kalan Nath Singh v. Shyama Nand : AIR1955All159 and Rai Narain v. Bhim Sen : AIR1966All84 , the Civil Judge after having dismissed the application for permission to sue in forma pauperis on 28th March, 1970 had no iurisdiction to grant time for payment of the court-fee on 13th April 1970, and that the Civil Judge was right in taking the view that the plaint was not a valid one. According to the learned counsel the District Judge acted illegally in setting aside the order of the Civil Judge. For the plaintiff respondent on the other hand, it was urged that in view of two subsequent decisions of the Supreme Court, one in the case of Vijai Pratap Singh v. Dukh Haran Nath Singh : AIR1962SC941 and the other in the case of Jugal Kishore v. Dhanno Devi : 1973CriLJ1769 the decisions of this Court relied on by the learned counsel for the appellant were no longer good law and the order of the District Judge accordingly did not call for anv interference. The learned Sinple Judge being of the view that the matter required consideration bv a larger Bench, directed the papers of the case to be placed before the Hon'ble the Chief Justice for constituting a larger Bench to hear the appeal. It isthus that the appeal has come UP before us.

3. As already indicated above the Civil Judge had recorded a finding against the respondent not only on issue No. .5 but also on issue No. 7 which was to the effect 'whether the suit is barred bv Order 33, Rule 15, Civil P. C. The finding on this issue too has been set aside bv the District Judee. Learned counsel for the appellant did not challenge the correctness of the finding of the District Judge on issue No. 7. He, however, as before the learned Single Judge, urged that in view of the various decisions of this Court referred to above the order of the District Judge on issue No. 5 was erroneous. Learned counsel for the respondent not only took UD the same defence which had been taken UD bv him before the learned Single Judge but further submitted that in view of Section 13 of the Limitation Act, 1963 the order of the District Judge was valid and in accordance with law and the aDPeal deserved to be dismissed on that ground alone.

4. Having heard learned counsel for the parties we are of opinion that in the instant case it is not necessary to record any finding as to whether the various decisions of this Court relied upon bv the learned counsel for the appellant can still be said to be operative in view of the two subsequent decisions of the Supreme Court relied on bv the respondent inasmuch as the appeal can be disposed of on the alternative submission made on behalf of the respondent based on Section 13 of the Limitation Act. As was the view taken bv this Court in the various decisions referred to above, so was the view taken bv the Patna High Court in Lala Mistry v. Ganesh Mistry AIR 1938 Pat 120 and Mathura Sinsh v. Smt. Sudama Debi AIR 1954 Pat 170 where it was held that if an application to sue in forma pauperis is rejected and no order is passed by the Court at the time of such rejection that the application would be treated as a plaint and further time granted to pav the requisite court-fee, the Court has no iurisdiction on a subsequent date to order that the original application should be treated as a plaint and court-fee may be paid on the same In Ramashrey Roy v. Pashupati Kumar Pathak : AIR1968Pat1 an application for permission to sue in forma pauperis had been made in the year 1963 i. e. before the coming into force of the Limitation Act. 1963. It waw however, rejected on 18th January 1964 i. e. after the said Act had come into force. Subsequently on 13th June 1964 an application was made for an opportunity being given to pav the court-fee.Permission was asked to amend the valuation of the disputed property. Court-fee on the amended valuation was also paid. The prayer for amendment of the valuation was allowed and the application was directed to be registered as a plaint. The defendants to the suit filed an objection which was however, rejected. The defendant took UP the matter before the Patna High Court in revision. The matter came up initially before a single Judge who referred it to a Division Bench which in turn referred it to a Full Bench. Before the Division Bench it was urged that in view of the decision of the Supreme Court in the case of Vijai Pratap Singh : AIR1962SC941 (supra) and in view of Section 13 of the Limitation Act. 1963. AIR 1938 Pat 120 and AIR 1954 Pat 170, could not be said to be laying down correct law. The Division Bench, however. thought that since the cases referred to above were also Division Bench judgments it was desirable that the matter may be referred to a larger Bench. When the matter came UP before the Full Bench the effect of Vijai Pratap Singh's case and Section 13 of the Limitation Act came up for consideration. Before deciding the controversy in issue it was pointed out.

'I may. however, point out that the well-known rule of judicial comity that a Division Bench should if it is unable to accept as correct the principle laid down in an earlier Division Bench decision, refer the matter to a Full Bench is subject to certain well-known exceptions. As pointed out in Halsbury's laws of England, 3rd Edition Volume 22, paragraph 1967, pases 799-800 (which had been cited with approval in a judgment of the Supreme Court in Jaisri Sahu v. Raidewan Dubey : [1962]2SCR558 . the Exceptions are as follows:--

'(1) The Court is entitled and bound to decide which of two conflicting decisions of its own it will follow: (2) the Court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords (here Supreme Court) ; (3) The Court is not bound to follow a decision of its own if given per incuriam. A decision is given per incuriam when the Court has acted in ignorance of a previous decision of its own or of a Court of co-ordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a decision of the House of Lords. In the former case it must decide which decision to follow, and hi the latter it is bound by the decision of the House of Lords.

A decision may also be given per incuriam when it is given in ignorance of the terms of a statute or of a rule hav-ing the force of a statute. A decision should not be treated as given per incuriam however, simplv because of a deficiency of parties, or because the Court had not the benefit of the best argument, and, as a general rule, the only cases in which decisions should be held to be given per incuriam are those given in ignorance of some inconsistent statute or binding authority. Even if a decision of the Court of Appeal has misinterpreted a previous decision of the House of Lords, the Court of Appeal must follow its previous decision and leave the House of Lords to rectify the mistake.' Hence, if, as stated by the referring Division Bench, the earlier Division Bench judgments may not be correct in view of the decision of the Supreme Court in Vijay Pratap Singh's case : AIR1962SC941 and also in view of Section 13 of the new Limitation Act. that Bench need not have referred this case to a Full Bench and could have disposed of these two revision petitions in the light of the principles laid down above.'

The Full Bench thereafter pointed out that since in that case the application for permission to sue in forma oauperis had been made before the coming into force of the Limitation Act. 1963 the benefit of Section 13 of the said Act could not be availed of by the plaintiff in view of Clause (b) of Section 31 of that Act which expressly lavs down that any application which may be pending at the commencement of that Act will not be affected by the provisions of that Act. However, the Full Bench took the view that in view of Vijai Pratap Singh's case (supra) the view taken in AIR 1938 Pat 120 and AIR 1954 Pat 170 that a pauper application is not a composite document including a plaint. cannot be taken as correct and that the principle laid down in the aforesaid two cases should to that extent be deemed to have overruled bv the aforesaid decision of the Supreme Court. On this view the order passed bv the Court below allowing the application to be amended and directing the plaint to be registered as a suit was upheld,

5. As already stated earlier it is not necessary in the instant case to record a finding as to what is the effect of the decisions of the Supreme Court in the cases of Viiai Pratap Singh and Jugal Kishore : AIR1962SC941 and : 1973CriLJ1769 (supra) on the decisions of this Court relied on bv learned counsel for the appellant inasmuch as here the application for permission to sue in forma pau-peris was made on 14th March 1969 long after the Limitation Act, 1963 had come into force. Section 13 reads-

'13. Exclusion of time in cases where leave to sue or appeal as a pauper is ap-plied for. In computing the period of limitation prescribed for anv suit or ap-peal in any case where an application for leave to sue or appeal as a pauper has been made and rejected, the time during which the applicant has been prosecuting in good faith in his application for such leave shall be excluded, and the Court may, on payment of the court-fees prescribed for such suit or appeal treat the suit or appeal as having the same force and effect as if the court-fees had been paid in the first instance.'

A plain reading of Section 13 makes it :lear that the section contemplates payment of court-fee after the application or leave to sue or appeal as a pauper has been rejected. The right to pay court-fee under Section 13 has not been made subject to anv permission being granted bv he Court at the time of rejecting the application for leave to sue or appeal as a pauper. Section 13 now removes the difficulty which used to arise if no permission to pay court-fee was granted at the time of rejecting the application, makinp this plea available to the other side that after rejecting the application the Court has become functus officio and no permission to pav court-fee would subsequently be granted. The section has two parts. The first part deals with the exclusion of time spent in prosecuting the application for leave to sue or appeal as a pauper in computing the period of limitation prescribed for a suit or appeal. The second part deals with payment of court-fee after the application has been rejected and its consequences. The cumulative effect of the two parts of Section 13 is that the period between the date on which the application to sue or appeal as a pauper was made and the date on which it was rejected shall be excluded if the applicant has been prosecuting the said application in good faith and on the court-fee being paid the suit for appeal would be deemed to be a valid document as if the court-fee had been paid in the first instance. The benefit of Section 13 shall not be available in those cases where either the applicant had not been prosecuting his application in good faith, or even after excluding the period during which he has been prosecuting the said application in good faith, there is some impediment which disentitles him of its benefit. The matter may be clarified by giving an illustration. Suppose an application for permission to sue or appeal in forma pauperis was made before thirty days of the expiry of the period of limitation; the application remained pending for a year and the court-fee was Paid after two months of the rejection of the application. In such a case even after the period during which the applicationwas being prosecuted in good faith is excluded, the suit or appeal would still be barred bv time inasmuch as the court-fee was paid not within thirty days which was the initial period available for filing the suit or appeal but beyond it. In such an event on payment of court-fee, the suit or appeal will not be treated as having the same force and effect as if the court-fee had been oaid in the first instance, unless the time for payment of court-fee is extended by the Court. If however, the court-fee has been paid before the expiry of the period of limitation fixed to which would be added the time during which the applicant had been prosecuting in good faith his application for leave to sue or appeal as a pauper or within such time as may have been extended bv the Court the suit or appeal will be treated as having the same force and effect as if the court-fee had been Paid in the first instance.

6. Coming to the facts of the pre-j sent case, it would be seen that it is not! the case of even the appellant that the application for permission to sue in forma pauperis had not been prosecuted by the respondent in good faith. So far as the period of limitation is concerned, as already seen, the relief claimed was for cancellation of a sale-deed dated 14th March, 1967 and for damages. The application was made on 14th March, 1969, within two years of the date of the execution of the sale-deed itself. The ap-; plication was reiected on 28th March 1970 and the court-fee was paid on 20th May 1970 i.e. within two months of thei said date. On the allegations made in the plaint and the facts stated above the suit was prima facie within limitation on 20th May 1970 when the court-fee was paid and in such an event on payment of the court-fee on the said date the plaint shall be treated as having the same force and effect as if the court-fee had been paid on 14th March 1969.

7. Even though learned counselfor the appellant did not urge that the respondent was not entitled to the benefit of Section 13 of the Limitation Act because she had not been prosecuting her application to sue in forma pauperis in good faith, it was strenuously urged that the benefit of Section 13 was not available to her inasmuch as the said section contemplates rejection of an application to sue in forma pauperis which means its rejection under Order 33, Rule 5. Civil P. C. which deals with rejection of application. According to him it would not apply to a case where the Court had refused to allow the application to sue as pauper under Order 33, Rule 7, Civil P. C. We find no substance in this submission.In our opinion, the word 'reiected' in Section 13 has been used in a wider sense and is comprehensive enough to include not only rejection of the application under Order 33, Rule 5 but also refusal to allow the application to sue as a pauper. The Legislature wanted to give the benefit of exclusion of time spent in prosecuting in good faith an application for permission to file a suit or appeal in forma pauperis. If the said application was made and prosecuted in good faith there seems to no justification to make any discrimination between a case where the said application has been reiected under Rule 5 of Order 33 and a case in which the Court has refused to allow the application to sue as a pauper under Rule 7 of Order 33. Civil P. C. It is a sound rule of interpretation of beneficent legislation that in case of ambiguity the construction which advances the beneficent purpose should be accepted in preference to the one which defeats that purpose. See Mahadeo Lal Kanodia v The Administrator General of West Bengal : [1960]3SCR578 . In Jivabhai Purshottam v. Chhagan Karson : [1962]1SCR568 , the same principle was reiterated and it was held that in interpreting a piece of beneficent legislation if there is any doubt that doubt should be resolved in favour of the person for whose benefit the Act was passed.

8. In view of the foregoing discussion, we are of opinion that the order of the District Judge does not call for an interference. We, however, wish to make it clear that our finding in regard to the suit being prima facie within limitation on 20th May, 1970, is based on the allegations made in the plaint and on the first part of Section 13 of the Limitation Act. If, however, on contest the defendant appellant is able to establish that the allegations made in the plaint are incorrect and the suit was barred bv time even on 14th March. 1969. it would be open to the Courts below to record an independent finding on the plea of limitation on the basis of the evidence produced bv the parties and our observation in that event is not to be treated as finally deciding the issue of limitation.

9. In the result, we find no merit in this appeal and it is accordingly dismissed. In the circumstances of the case the parties will bear their own costs.


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