BHAJJA Vs. MOHAMMAD SAID KHAN

JUDGEMENT

(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/s. 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/s. Sunder Nath [1898] 20 All. 299 and also by the Madras High Court in Govindasami Pillay V/s. Municipal Council, Kumbakonam [1918] 41 Mad. 620, the Bombay High Court in Dulari V/s. Vallabdas Pragji [1889] 13 Bom. 126 and the Lahore High Court in Allah Wasai V/s. 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/s. 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/s. 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.