BIBI BASHIRAN Vs. LAL MOHAMMAD

JUDGEMENT

(1.) The facts giving rise to this appeal are these. The plaintiff appellant sued the defendants respondents for recovery of Rs. 6500 as principal, besides interest, on the basis of two hand notes dated 10-7-1956 and 25-7-1956 executed by respondent No. 1, Lal Mohammad as representative of all the defendants in favour of the plaintiff. The defendants admitted the first hand note but alleged that the second handnote was a forged one and no consideration passed therefor. It was also pleaded that the suit was barred by limitation. The question of limitation arose, because originally the plaintiff had made an application on the 7th July, 1959 to sue in forma pauperis under Order 33 of the Code of Civil Procedure. This application was rejected on contest by the trial Judge on the 30th June 1960 but on the same date he passed the following order in the order sheet: "20.30.6.60 Pauper application having been disallowed as per judgment in separate sheets in Misc. Case 33/59 it is registered as money suit no 65 of 1960 Sheristadar to check and report by 8-7-60 1st to 6th being holidays" On the 8th July, 1960 the court directed the plaintiff to pay court-fee of Rs. 821.25 P. by the 18th July. 1960. The plaintiff look time on the 18th July and on next date, i.e., the 21st July, she filed a petition for further time on the around that she had already deposited the amount of court fee by chalan but had not received the Court-fee from the treasury. The court-fee was filed on the 23rd July. 1960, and on the 25th July, the date to which the case had been adjourned on the 21st July, the plaint was admitted and, summonses were ordered to be issued to the defendants.

(2.) Both the courts below found the two handnotes to be genuine and for consideration, and the trial court decreed the suit in full with costs against all the defendants after rejecting the plea of limitation. On appeal, the learned District Judge of Dhanbad, however, found only respondent No. 1, who had alone executed the handnotes, liable for the dues; but he dismissed the suit on the ground that the suit was deemed to have been instituted on the 30th June, 1960, i.e., more than three years from July 1956. Hence, this appeal by the plaintiff.

(3.) The only ground urged by the learned Advocate for the plaintiff appellant in this court is that the finding of the court of appeal below regarding limitation of the suit is wrong. He submitted that the suit must be deemed to have been filed on the date the application for permission to sue as a pauper was made and not on the 30th June, 1960 or on any date thereafter. On the other hand, Mr. Rajgarhia submitted that the suit must be deemed to have been instituted on the date when the application for permission to sue as a pauper was registered as a plaint i. e., when the plaintiff applicant requested the court to treat the application as a plaint and to grant him time to pay court-fee. He explained this submission to mean that the court could treat the application as a plaint only after a petition were made to that effect by the applicant plaintiff. He could not cite any authority in support of this submission, nor could he point out any provision to that effect either in the Civil Procedure Code or in the Limitation Act. On the other hand, a Full Bench decision of this court in Ramashree Roy v. P.K. Pathak, 1967 B.L.J.R. 594 : (AIR 1968 Pat 1) (FB) which is based on a decision of the Supreme Court in Vijal Pratap Singh v Dukh Haran Nath Singh, AIR 1962 SC 941 supports the contention of the plaintiff appellant. In this case, their Lordships of the Supreme Court, after summarising the provisions of Order 33 of the Code, said: