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Kali Dasi Dasi W/O Fanindra Nath Nandy Vs. Santosh Kumar Pal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1938Cal730
AppellantKali Dasi Dasi W/O Fanindra Nath Nandy
RespondentSantosh Kumar Pal and ors.
Cases ReferredJagannath Puri v. Nathoo
Excerpt:
- .....for permission to sue as a pauper. on 10th december 1934, the subordinate judge rejected the pauper application with costs, but it was not till 10th january 1935 that the robakari was drawn up stating that the costs amounted to rs. 10-10-6 payable to government and rs. 16-7-0 payable to the defendants opposite parties. it was not stated that the costs were to be paid within a certain time nor does it appear that the robakari was signed by the plaintiff's pleader. meanwhile, on 2nd january 1935, the plaintiff applied to have the pauper application containing the particulars of her plaint registered as a plaint in the suit on payment of proper court-fees for which time was asked for. it was stated in the application that 12 annas court-fee had already been paid, the balance payable.....
Judgment:

S.K. Ghose, J.

1. This is a second appeal by the plaintiff in a suit for recovery of money on the allegation that defendants 1 to 4 who are related to the plaintiff, an elderly Hindu widow, borrowed from her Rs. 2000 on 1st Agrahayan 1338 B. S. corresponding to 17th December 1931 promising to pay interest at 12 per cent. per annum. The loan was an oral one. The defence was that the claim was false, that there was no such loan and, further, that the suit was barred by limitation. The plaintiff brought the suit on 27th June 1934 within three years of the alleged transaction. At the same time she filed as application for permission to sue as a pauper. On 10th December 1934, the Subordinate Judge rejected the pauper application with costs, but it was not till 10th January 1935 that the robakari was drawn up stating that the costs amounted to Rs. 10-10-6 payable to Government and Rs. 16-7-0 payable to the defendants opposite parties. It was not stated that the costs were to be paid within a certain time nor does it appear that the robakari was signed by the plaintiff's pleader. Meanwhile, on 2nd January 1935, the plaintiff applied to have the pauper application containing the particulars of her plaint registered as a plaint in the suit on payment of proper court-fees for which time was asked for. It was stated in the application that 12 annas court-fee had already been paid, the balance payable being Rs. 209-4-0. It was further stated in the application that if the pauper application had been disposed of by the Court earlier, there would have been no difficulty in presenting a fresh plaint with full court-fees within the period of limitation; but since by the act of the Court the decision had been delayed the prayer was made for time under Section 149, Civil P.C. The Subordinate Judge granted the prayer and gave time till 10th January 1935 for payment of the court-fees. On that date the amount of the court-fees was paid in and accepted by the Court, and the application was directed to be registered as money suit No. 2 of 1935.

2. Thereafter, proceedings ensued in connexion with the suit and issues were framed, witnesses were summoned, etc. On 7th February 1935, the plaintiff paid to Government the costs payable by the robakari of 10th January 1935. There is nothing on the record to show that before ' the date the plaintiff was aware that this sum was payable to Government. The learned advocate for the plaintiff-appellant in this Court has stated that this payment was made on demand from Government, but there is nothing on the record to show that also. On 18th March 1935 the defendants filed written statements but nothing was said therein as to the non-payment of costs to the defendants or to Government. On 4th July 1935 the defendants filed additional written statements in which for the first time a plea was taken to the effect that the plaintiff could not bring the suit without paying the costs to the Government and the defendants and the following issues were suggested : (1) the plaintiff's suit is not maintainable as being barred by limitation; and (2) the plaintiff not having paid the costs to Government in the pauper application the suit is not maintainable. It is noteworthy that the non-payment of costs to the defendants was not suggested in the issues. However, on 27th July 1935 the plaintiff paid the costs to the defendants as directed by the robakari. Thereafter the suit went to trial.

3. The Subordinate Judge found that the plaintiff's case on the merits was true, and that there was absolutely no motive on the part of the plaintiff to bring a false case. On the question of limitation, it was contended on behalf of defendants that the suit was barred because the date 10th January 1935 must be deemed to be the date of the institution of the suit and, as it was not filed within three years from the date of the loan, the Court had no jurisdiction to extend the time after 10th December 1934 for payment of court-fees. On this question the Subordinate Judge following the authority in Jagadeeshwaree Debee v. Tinkarhi Bibi : AIR1936Cal28 , held that 27th June 1934, the date of the original filing of the plaint along with the pauper application, and not 10th January 1935 should be considered to be the proper date of the presentation of the plaint for the purpose of limitation. Then, as to the fact that the costs payable Ho Government and to the parties in the pauper case were paid by the plaintiff later, the Subordinate Judge held, following the case in Mrinalini Debi v. Tinkauri Debi (1912) 1G CWN 641 that there was no bar to the maintain-ability of the suit under Order 33, Rule 15, Civil P.C. In that view the learned Subordi-nate Judge decreed the suit against defendant 1. Against that decision an appeal was taken by defendant 1. The learned District Judge in the lower Appellate Court agreed with the Subordinate Judge upon the merits, holding that defendant 1 had really taken the money from the plaintiff. But on the question of limitation he took a different view. As to the payment of court-fees the. District Judge agreed with the Subordinate Judge in holding that Section 149, Civil P. C, applied, and the case in Jagadeeshwaree Debee v. Tinkarhi Bibi : AIR1936Cal28 was the authority to be followed. But on the second point, namely the delay in the payment of costs under Order 33, Rule 15, Civil P.C., the learned District Judge distinguished the case in Mrinalini Debi v. Tinkauri Debi (1912) 1G CWN 641 and followed certain Allahabad decisions. In the result he held that the suit was time-barred because the costs had been paid by the plaintiff after the expiry of the period of limitation counting from the date of the loan. Then the District Judge proceeded to another finding, namely that the application to sue as a pauper was not bona fide and therefore the plaintiff was not entitled to an order in her favour under Section 149, Civil P.C. On these two grounds, the District Judge held that the plaintiff's suit was time-barred. Against that decision the present second appeal was filed by the plaintiff.

4. Apart from the question of mala fides referred to above, the decision of this appeal turns on the question of limitation and three questions arise: (1) whether the suit must be taken to be instituted at the time of the filing of the pauper application; (2) whether it must be taken to be instituted at the time when court fees were actually paid, and (3) whether it was properly instituted at the time when costs were paid. These questions depend upon the application of Section 149 and Order 33, Rule 15, Civil P.C. Except on the question of bona fides, both the Courts below have taken the same view as regards the application of Section 149 in favour of the appellant. But the question has been raised as a question of law in this Court by the respondent. It seems to me however that the questions-arising out of the aforesaid two provisions of the Civil Procedure Code are not disconnected. We have been referred to a number of decisions by both sides in this Court and most of them were also cited in the lower Courts. These rulings disclose a conflict of judicial opinion not only amongst the different High Courts but also in the same High Court. The position being that the pauper application has been rejected three views emerge, first that the suit must be taken to have been instituted at the time of the original pauper application although the court-fees were paid later with the permission of the Court under Section 149, Civil P.C. This view may be said to be represented by the case in Jagadeeshwaree Debee v. Tinkarhi Bibi : AIR1936Cal28 .

5. The second view is that the suit must be taken to have been instituted on the date of the payment of court, fees. This is the view in Alopi Pershad v. Mt. Gappi (1937) 24 AIR Lah 151. In that case there was no question of payment of costs but Order 33, Rule 15 was also referred to. The third view is that the suit was properly instituted when the costs were paid under Order 33, Rule 15: Shiam Sundar Lal v. Savitri Kunwar : AIR1936All723 and Ramakrishna Nadar v. Thirumalai Vandaya Thevar : AIR1936Mad24 which followed, and at the same time distinguished, the Allahabad case. Be it noted that in these cases no question of limitation was expressly raised. The view taken in Jagadeeshwaree Debee v. Tinkarhi Bibi : AIR1936Cal28 may be said to represent the Calcutta view. See the case in Bhusan Chandra Ghose v. Kanai Lal Sadhu khan : AIR1937Cal241 in which D. N. Mitter J. took the same view citing a previous Calcutta case as one of the authorities. A different view was taken in Aubhoya Churun Dey Roy v. Bisseswari (1897) 24 Cal 889 which however was under the old Code. It is by no means irrelevant to remember that Sections 148 and 149, Civil P. C, are new provisions, although the provision under Order 7, Rule 11 was Section 54 of the old Code. I do not propose to discuss these cases in detail. It will be sufficient to say that the principle of law as laid down in Jagadeeshwaree Debee v. Tinkarhi Bibi : AIR1936Cal28 undoubtedly supports the contention of the appellant. The question is whether there is sufficient reason for us to take a different view. The Lahore view expressly differs from the Calcutta view, but it seems to me that the difference is a narrow one. If it is 'correct that the institution of a suit starts with the payment of court fees, it is difficult to resist the application under Section 149 and if that applies the conclusion might legitimately be drawn that the proper date (for the filing of the suit should go back to the date of the filing of the plaint with the pauper application. This is by no means inconsistent with the decision of the Judicial Committee in Stuart Skinner v. William Orde (1881) 2 All 241 which is the basis of both views mentioned above. In the Privy Council case the pauper application had not been rejected, but it was withdrawn.

6. From the point of view of the plaintiff applicant, the difference seems to be slight, and the learned advocate for the defendant-respondent in this Court conceded that, point. But the view in Jagadeeshwaree Debee v. Tinkarhi Bibi : AIR1936Cal28 seems to me to be broader and more liberal, while the other views are narrower being based upon a strict reading of Order 33, Rule 15, Civil P.C. The result is, it is not surprising to find, that in all those cases in which the narrower view has been taken actual hardship was caused to the plaintiff applicant and sometimes the Court was constrained to lay the blame on the Legislature. As for instance in Ramabai v. Shripad Balwant (1935) 22 AIR Bom 421, it is conceded that if the case is true on its merits, where the party follows the orders of the Court, the defect consequential on :those orders would become procedural rather than substantive and therefore there is a good deal to be said for the proposition that such defect should not defeat the ends of justice. This has been stated as a principle in many decisions: Sabitri Thakurain v. Savi (1921) 8 AIR PC 80, Ghirdharee Singh v. Koolahul Singh (1866) 2 MIA 344 at p. 350 and Kendall v. Hamilton (1879) 4 AC 504 at page 525.

7. Now there are several answers to the view of law taken by the District Judge and which is sought to be supported by the respondents in this Court. It seems to me that the view taken in Jagadeeshwaree Debee v. Tinkarhi Bibi : AIR1936Cal28 gives a reasonable construction to both the provisions, namely Section 149 and Order 33, Rule 15, since if the suit is taken to be instituted as ' from the date of the pauper application the plaint being already there and the court-fees being filed later with the Court's permission the provision in Order 33, Rule 15 does not affect the question of limitation. The decision in Shiam Sundar Lal v. Savitri Kunwar : AIR1936All723 was explained in Bic Ram v. Lachmi Rai : AIR1937All781 and there it was pointed out that when the plaint was already registered there was no fresh institution under Order 33, Rule 15. That was also the view taken in Bank of Bihar Ltd v. Ramchanderji Maharaj (1929) 16 AIR Pat 637. This case was sought to be distinguished in a subsequent case, namely in Sudhir Kumar v. Jagannath Marwari (1935) 22 AIR Pat 193 which was however a decision of a single Judge.

8. On the other hand if the Lahore view is correct, namely that the suit was instituted when the court-fees were actually paid, which in this case was on 10th January 1935, the question is whether the plaintiff is not entitled to deduct the period of the hearing of the pauper application. If this is done, the suit would be within time. As mentioned above, the plaintiff expressly stated in her pauper application that if the decision in the pauper application had been given earlier by the Court there would have been no difficulty in filing a fresh plaint within time. The question is whether the plaintiff is entitled to the benefit of Section 14, Limitation Act. It is contended by the learned advocate for the respondents that the plaintiff is not so entitled, because in the first place it cannot be brought within the strict wording of Section 14 as disclosing a 'defect of jurisdiction or other cause of a like nature' and, further, as not being 'in good faith' as held by the District Judge. The expression 'other cause of a like nature' has been the subject of various decisions, most of which will be found mentioned in Chitaley's Indian Limitation Act (1938), pages 567 to 572. The decisions have been divergent but a liberal construction has also been favoured. In the present case, having regard to the facts stated above, I am not prepared to hold that the matter has been taken out of Section 14 and that the Court has, in fact, found it self unable to entertain the application for a cause which may not come within the expression 'other cause of a like nature.' On the question of good faith the District Judge's finding would appear to be a finding of fact, but it is a finding which is based simply on this, that the plaintiff's application to sue as a pauper has been dismissed, and the District Judge has relied upon the judgment of the Subordinate Judge. The learned Subordinate Judge distinctly says:

The case, Jagannath Puri v. Nathoo , also does not apply to the present case because there were no mala fides of the plaintiff in the present case in bringing the application for permission to sue as a pauper.

9. On the other hand, the District Judge has agreed with the Subordinate Judge in finding that the plaintiff's case is true on the merits and as to payment of court-fees and costs the plaintiff has throughout acted with the permission of the Court and followed the orders as passed by the Court. In these circumstances the finding of the District Judge that there was bad faith on the part of the plaintiff is based on no evidence and must be set aside. Thus even assuming that the Lahore view is correct the plaintiff is entitled to be excused the period during which the pauper application was pending and if that is done the suit is within time. If that is so, no question of limitation arises under Order 33, Rule 15. The learned advocate appearing for the plaintiff-appellant in this Court has contended that in the circumstances a reasonable construction would be that the costs must be payable by the plaintiff before the suit could be taken up for hearing. A suit may be taken to be properly instituted although insufficient court fees are paid in the first instance and the matter would come under Order 7, Rule 11. In this case also 12 annas court-fee was actually paid at the beginning. Further it is contended by the learned advocate for the appellant that costs in order to be a bar under Order 33, Rule 15, must be calculated by the Court and set out in a decree so that the plaintiff may know what amount to pay. It cannot be said that the suit is barred for ever because the party to whom the costs are payable chooses not to ask for costs. Further in the present case the rejection of the pauper application did not actually terminate the proceedings because a decree for costs was drawn up later, and in fact it was not drawn up until the plaint was ordered to be registered. The Government does not object that costs have not been paid. The defendants objected, but did not raise an issue as to the payment of costs to them. It is contended therefore that at that stage the point was taken as waived and on the question of fact as to whether the plaintiff was aware as to what amount was payable as costs there was necessarily no investigation. Taking all this into consideration, it seems to me that the learned Subordinate Judge took the right view both on facts and on law and the District Judge's view was wrong.

10. The result is that this appeal must be allowed against defendant 1 with costs throughout. The decree of the lower Appellate Court is set aside and that of the Court of first instance restored. This appeal has not been pressed against respondents 2, 3 and 4. It is accordingly dismissed as against the said respondents who are entitled to their costs from the appellant.

Patterson, J.

11. I agree.


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