1. The circumstances from which this case has arisen have been described in my note of 7th December 1932. An application for leave to appeal in forma pauperis under Order 44, Rule 1 was presented in Court on 2nd May 1932 and was listed on 10th May 1932 with an office note to the effect that the application was 58 days beyond time. The order passed by me was:
As the application hag not been made within the period of limitation, it must be and is rejected.
2. The period of limitation prescribed by Article 170, Schedule 1, Limitation Act, for the presentation of an application for leave to appeal as a pauper is 30 days and the application in this case was presented 88 days after the date of the decree appealed from. The question that I have to decide is whether what was rejected on 10th May 1932 was an application for leave to appeal as a pauper, or merely a motion to admit an application for leave to appeal as a pauper. It has been pointed out that as a single Judge I had no jurisdiction to reject an application for leave to appeal as a pauper because under Clause 10, Rule 1 of the Rules of the Court, such an application can be disposed of by a Single Judge only when the appeal would be within the jurisdiction of a single Judge, and this was not the case here. If my order of rejection was passed without jurisdiction, then the effect would be that the motion or the application, whichever it be, was not rejected, and must be still held to be pending, and I am therefore in a position to hear an application which has since been filed, under Section 5, Limitation Act. The preliminary objection of Mr. Pathak is that what was rejected was a motion to admit an application and not the application itself, and as a Single Judge has jurisdiction under Clause 12, Rule 1 to dispose of such a motion the order rejecting it was passed with jurisdiction, and the result that followed was that after the order of rejection no appeal was pending, and consequently the application under Section 5, Limitation Act, cannot be heard.
3. I think there can be no doubt that a distinction has to be made between a motion to admit an application and the application itself. This distinction is indeed expressed in Clause (9), and Clause (12), Rule 1, of the High Court Rules. In Clause (12) it is shown that a Single Judge can dispose of a motion to admit an application, but he can only dispose of the application itself in certain specified cases, namely, in cases where if it was a second appeal, it would be within the jurisdiction of a Single Judge. Similarly under Rule 9, Chap. 1, the Registrar has authority to deal with a motion for the admission of a civil appeal; but he must submit it for the orders of a Judge if it appears to him to be barred by limitation. Mr. Pathak's argument is that in the present case there was a motion to admit an application which was presented not to the Registrar but to me, and that as it was reported to be barred by limitation, it was properly rejected just as I should have properly rejected a motion to admit a civil appeal that was reported to be barred by limitation. Mr. Gour has pointed out that the rejection of the application does not mean the rejection of the appeal and this is I think perfectly correct. If the application had been rejected under the provision to Rule 1, Order 44, the effect would not have been the rejection or dismissal of the memorandum of appeal itself. When however an application is rejected under the provision to Rule 1, Order 44 what is rejected is an application that has already been admitted, that is to say, it has already passed through the preliminary stage which according to Mr. Pathak's argument every application has to pass through. Rule 1, Order 44 provides that any person may be allowed to appeal as a pauper
subject in all matters, including the presentation of such application, to the provisions relating to suits by paupers, in so far as those provisions are applicable.
4. The provisions relating to suits by paupers are set forth in Order 33 and they show that in the first place the application shall contain certain particulars and shall conform with certain requirements that are not now in point, and that it shall be rejected by the Court under Rule 5 for certain reasons which are again not in point at present. If the application is not rejected for any of these reasons but is granted, Rule 8 shows that:
it shall be numbered and registered and shall be deemed the plaint in the suit and the suit shall proceed in all respects as a suit instituted in the ordinary manner, except that the plaintiff shall not be liable to pay any court-fee....
5. It is to be observed that the application cannot be rejected under Rule 5 because it is barred by limitation, or because the suit is barred by limitation. That question is reserved for the next stage, when the application has been granted and has thenceforward to be considered, as a plaint. The rules relating to plaints are contained in Order 7 and Rule 11 of that Order shows that a plaint shall be rejected in certain cases. Clause (d) of that rule shows that it must be rejected where it appears from the statement in the plaint to be barred by any law. The law of limitation is of course such a law, and if a plaint is barred by the law of limitation it must undoubtedly be rejected. It is clear therefore that if a person were to sue as pauper on a plaint which discloses a cause of action barred by limitation that plaint would have to be rejected as a plaint under Rule 11, Order 7. The question is whether the present application for leave to appeal is subject to the liability to be rejected at the preliminary stage referred to in Order 7, Rule 11. Mr. Gour has argued that a plaint is admitted under Rule 9, or Rule 7 before it is rejected under Rule 11, but I cannot interpret the rules in this way. It appears to me that the rules are those relating to the admission of a plaint and that when Rule 11 provides that the plaint shall be rejected, the meaning can only be that it is rejected instead of being admitted, and when it has been rejected, it cannot be said that it is still pending before the Court, although Rule 13 prescribes that the rejection of the plaint under Rule 11.
shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.
6. Under Section 41, Civil P.C., the procedure provided in the Code in regard to suits shall be followed as far as can be made applicable in all proceedings in any Court of civil jurisdiction, and as I have already remarked, the procedure prescribed for pauper suits is specifically applied to the procedure for the presentation of pauper appeals. There can, I think, be no doubt therefore that an application for leave to appeal as a pauper may be rejected at a preliminary stage on the ground that it is barred by limitation before it is actually considered by the Court judicially under the proviso to Rule 1, Order 44. That preliminary stage is the one referred to in the Rule of Court as a motion to present an application, and it follows that my order. of rejection was one passed at this preliminary stage, and was technically an order rejecting a motion to present an application and was not an order rejecting the application itself under Order 44, Rule 1. It follows from this that the preliminary objection raised by Mr. Pathak must be maintained and that the application under Section 5, Limitation Act, must be and is dismissed with costs.
7. Mr. Gour has suggested that even if this be the case, it is still open to me to give the applicant time within which to pay the court-fee and to file the appeal as a regular appeal. Such an order is sometimes made by a Judge or a Bench of Judges when rejecting an application under Section 44, Rule 1, that is to say, when they have considered the application on its merits. I do not think that it is open to me to pass such an order now. When the motion to admit the application was rejected 88 days from the date of the decree against which it was sought to appeal, there was still time to pay the court-fee and file an appeal in the regular way. Moreover the considerations that prevail with Judges who allow time when rejecting an application under the proviso to Rule 1, Order 44 are quite different from those by which I have to be guided. I rejected the motion to the present application solely on the ground that it was presented more than 30 days beyond the time allowed by law. The order of rejection has no effect whatever on the question of whether an appeal can be successfully presented or not. It may be that an appeal could still be presented if the proper court-fee is paid, and if it is accompanied by an application under Section 5., Limitation Act. At present however there is properly speaking no appeal before the Court. In my opinion therefore there is no jurisdiction for passing any order of the kind even if I had jurisdiction to do so, which appears to me to be extremely doubtful.
8. Mr. Gour has asked me to certify that this is a proper case for appeal under the Letters Patent, and I therefore give him permission to present such an appeal.