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Bhajja Vs. Mohammad Said Khan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1932All543
AppellantBhajja
RespondentMohammad Said Khan
Excerpt:
.....whether the right to sue arose within its own jurisdiction. a plaintiff whose right has been infringed may well have a cause of action against the defendant, and yet his right to sue in a court of law after a fixed period may have become barred by time. 16) clearly emphasized that: examination of some of the provisions of the code of civil procedure would show that the legislature had this distinction clearly in mind......action. the question for consideration is whether these words include the case where the claim is time barred.2. section 407(o), civil p.c., 1882, had the following words : 'his allegations do not show a right to sue in such court.' on those words it was held by a full bench of this court in the case of chattarpal singh v. raja rain [1885] 7 all. 661 that the words must not be read as limiting the court's discretion to merely ascertaining whether the 'right to sue' arose within its jurisdiction, but had a more extended meaning, namely, that an applicant must make out that he has a good subsisting cause of action, capable of enforcement in court, and calling for an answer, and not barred by the law of limitation or any other law. this ruling was of course accepted by a division bench of.....
Judgment:

Sulaiman, J.

1. This is an application in revision from an order rejecting an application to sue in forma pauperis. The plaint has been drawn up in a most in artistic way, and it is open to many serious objections. The learned Subordinate Judge however has not rejected the plaint on the ground that the facts mentioned therein do not show that any right of the plaintiff has been infringed for which there is a remedy in law, but has rejected it on the ground that the suit is barred by limitation. On the question of the applicant's pauperism the finding is in his favour. The learned advocate for the applicant contends before us that it was not open to the Court below to inquire into the question whether the claim, as put forward in the plaint, was or was not barred by the law of limitation. The Court below has proceeded under Order 33, Rule 5, which makes it obligatory on the Court to reject an application for permission to sue as a pauper where inter alia the allegations of the plaintiff do not show a cause of action. The question for consideration is whether these words include the case where the claim is time barred.

2. Section 407(o), Civil P.C., 1882, had the following words : 'His allegations do not show a right to sue in such Court.' On those words it was held by a Full Bench of this Court in the case of Chattarpal Singh v. Raja Rain [1885] 7 All. 661 that the words must not be read as limiting the Court's discretion to merely ascertaining whether the 'right to sue' arose within its jurisdiction, but had a more extended meaning, namely, that an applicant must make out that he has a good subsisting cause of action, capable of enforcement in Court, and calling for an answer, and not barred by the law of limitation or any other law. This ruling was of course accepted by a Division Bench of this Court in the case of Kamarakh Nath v. Sunder Nath [1898] 20 All. 299 and also by the Madras High Court in Govindasami Pillay v. Municipal Council, Kumbakonam [1918] 41 Mad. 620, the Bombay High Court in Dulari v. Vallabdas Pragji [1889] 13 Bom. 126 and the Lahore High Court in Allah Wasai v. Ramzan A.I.R. 1929 Lah. 498, as well as some other Courts. The legislature has altered the words of the old section and now they read as 'where his allegations do not show a cause of action.' It has been suggested by a commentator that the alteration shows the intention of the legislature to affirm the decisions under the old section. On the other hand, it may equally well be suggested that the alteration is intended to make it clear that the Court's discretion was not limited to merely ascertaining whether the right to sue arose within its own jurisdiction.

3. The only case under the new Code in which the Full Bench decision has been directly followed, and which has been brought to our notice, is a single Judge case of the Lahore High Court, Mt. Haur Kaur v. Munni Lal [1919] 134 P.R. 1919. But the judgment in that case does not consider the effect of the alteration in the law. The Madras and Lahore High Courts, which have followed the Full Bench decision of this Court, have felt constrained to lay down that the section does not mean that the Court should enter into an elaborate examination of the question of limitation, but should throw out the plaint' only where the matter is simple. It is very difficult to agree to this partial application of the principle laid down in the old Full Bench case. One does not see where to draw the line. One Court may consider the question of limitation simple, while another Court may consider it a complicated one. If it is the duty of the Court to reject an application where it is barred by time, it would be immaterial whether the conclusion is arrived at summarily or after examining the question in some elaborate detail. A question of limitation is often a substantial question of law, and if decided against the applicant it would deprive him of a right to go to an appellate Court and have the matter re-examined. In revision an error of law on a question of limitation cannot be entertained as there would be neither want of jurisdiction, nor illegality nor irregularity. A plaintiff whose right has been infringed may well have a cause of action against the defendant, and yet his right to sue in a Court of law after a fixed period may have become barred by time. The law of limitation bars the remedy and does not in all cases extinguish the right: for instance, a claim to recover a debt may not be enforceable after a certain period of time, and yet the debt may exist and may furnish sufficient consideration, if the amount is paid. Where, as in Section 28, Lim. Act, the right itself is extinguished, the position would be different. There is nothing in the explanation to Section 3 of the said Act, which enjoins upon the Court a duty to dismiss the application to sue as a pauper merely because in its opinion the suit itself ?would be barred by time. It merely lays down the date on which the suit is to b& deemed to have been instituted. Their Lordships of the Privy Council in the case of Hari Nath Chatterjee v. Mothurmohun Goswami [1894] 21 Cal. 8, (at p. 16) clearly emphasized that:

the intention of the law of limitation is, not to give a right where there is not one, but to interpose a bar sifter a certain period to a suit to enforce an existing right. The bar is created by the law of limitation against a suit to enforce an existing right. It is clear that the bar of limitation does not necessarily extinguish the right but the right, though existing, becomes unenforceable in a Court of law. Section 1, Clause 12, Act 24 of 1859 laid down that no suit shall be brought to enforce the right after the lapse of 12 years from the time the cause of action, arose.

4. Their Lordships of the Privy Council in the case of Munni Lal v. Gobind Krishna Narain [1911] 33 All. 356, [at p. 366) referred to Section 1, Clause 12 of Act 24, 1859, which provided that no suit could be brought after the lapse of 12 years from the time the cause of action arose. Obviously the legislature in that enactment had in mind the distinction between the lapse of the period of limitation and the date when the cause of action arose. The two were not identical. A similar observation might be made with regard to Article 120 of the new Limitation Act under which the right to sue becomes barred after the expiry of 12 years from the date when the right to sue accrues. If the Court were bound to go into the question whether the suit itself was barred by time, it may decide that it was not so barred. There would be no case decided and no revision would lie : B.B.C.I. Ry. Co. v. Mitthu : AIR1931All659 . Would such an order be binding in the suit or the appeal? Certainly, it would not. It may also be noted that the Court-fees Act is a fiscal measure, and it is the Government which is principally concerned in the matter, the defendant not being directly affected by the grant of a permission to the plaintiff to sue as a pauper. Unfortunately the term 'cause of action' has not been defined any where in the Code of Civil Procedure or in any other statutory enactment. In Bead v. Brown [1888] 22 Q.B.D. 128 Lord Esher, M.R. quoted the definition of 'cause of action,' as given in Law Rep. 8 C.P. 107, with approval, and laid down that 'cause of action' means

every fact which it would be necessary for the plaintiff to prove if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to prove.

5. Literally, of course, 'cause of action' means cause which can give rise to an action. A right to sue accrues when a right has been infringed and there is a remedy recognized by law. An. examination of some of the provisions of the Code of Civil Procedure would show that the legislature had this distinction clearly in mind. Section 20 prescribes that every suit shall be instituted in a Court within the local limits of whose jurisdiction the cause of action, wholly or in part arises. Here the law of limitation is obviously not in contemplation. Order 2, Rules 3, 6 and 7, which deal with joinder of several causes of action, do not also contemplate any rule of limitation barring the claim.

6. Order 7, Rule 11, also enjoins upon the Court the duty to reject the plaint in every case where it does not disclose a cause of action. It is not confined to suits in forma pauperis. Rule 13 of that order allows the plaintiff to present a fresh plaint in respect of the same cause of action. It may be doubted whether the legislature has intended that where a plaint has been rejected on the ground that the claim is barred by limitation the plaintiff would be at liberty to file a fresh plaint either without any new allegations or with new allegations showing an exemption from the law of limitation. Order 7, Rule 1(e) requires that the plaint shall contain the particulars as to the facts constituting the cause of action and when it arose. This obviously requires that the date of the cause of action should be given in the plaint. This date is not identical with the date of the institution of the suit. The question whether the prescribed period of limitation from the date of the cause of action has or has not expired is obviously not a part of the cause of action of the plaintiff. When the suit is barred by time,, it cannot be said that the plaint does not disclose a cause of action, but it rather appears that the claim based on the case of action disclosed by the plaint is-barred by the law of limitation.

7. Where the claim is barred by limitation, Section 3, Lim. Act, enjoins upon the Court the duty to 'dismiss the suit.' On the other hand, Order 7, Rule 11, enjoins a duty to 'reject' the plaint when it does not disclose a cause of action. The dismissal of the suit and the rejection of the plaint are not identical terms. In one case a decree is passed, in the other case it is merely an appealable order.

8. We therefore think that the cause of action as used in Order 7, Rule 11 does not mean a claim, which is still enforceable under the law of limitation. Had such, been the intention of the legislature, it could very easily have said : 'a right to sue capable of enforcement,' the words which were used in the old Full Bench case of this Court. No difficulty is created by the postponement of the question, whether the suit is barred by time, for after the plaint has been admitted, the-defendant can move the Court, or the Court may act suo motu under Order 7, Rule 11 (d), and reject the plaint on the. ground that the suit 'appears from the statement in the plaint to be barred' by the law of limitation.

9. In the present case the Court below has not only gone into the question of limitation and considered several reported cases, which question in our opinion is wholly unnecessary at this stage, but has also assumed that it was admitted by the applicant that more than three years before the filing of the application he came to know that the opposite party had not entered the items in question in the second sarkhat, which as alleged in the plaint were fraudulently left out. The learned advocate for the respondent is unable to draw our attention to anything on the record which would support, this, except the allegation in para 12 of the plaint. But that allegation merely was that 'during the course of' Suit No. 38 of 1925 etc., the sarkhat was called for, and it was at that time that, the plaintiff came to know of the dishonesty and fraud of the defendant. The admission did not amount to saying that the sarkhat was summoned in the year 1925 or that the knowledge came to the plaintiff in that year.

10. We think that when the Court found that the plaintiff was a pauper and was unable to pay the court-fees, it ought not to have rejected the plaint on the mere ground that in its opinion the claim, if entertained, would be barred by time. That is a question which can be properly decided after the plaint has been admitted. We accordingly allow this revision and setting aside the order of the Court; below, send the case back to that Court with directions to restore it and dispose of it according to law.


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