KESHAVLAL HIRALAL Vs. MAYABHAI PREMCHAND

JUDGEMENT

(1.) We think that this suit must be held to be time-barred having regard to the decision of this Court in Keshav Iiamchandra V/s. Krishnarao Venkatesh (1895) I.L.R. 20 Bom. 508.

(2.) The learned Advocate-General for the respondents has attempted to distinguish that case from this by relying on the decision of the Privy Council in Skinner V/s. Orde (1879) L.R. 6 I.A. 156. The observation of the Privy Council on which reliance is placed has reference to a state of facts different from those in the case now before us or to the case of Keshav Ramchandra v. Krishnarao Venkatesh (1895) I.L.R. 20 Bom. 508. As pointed out in the judgment of their Lordships the application there to be allowed to sue as a pauper contained all the materials of a plaint. While the enquiry into the applicant's pauperism was proceeding, he withdrew his prayer to be allowed to sue in forma pauperis and paid the Court-fees leviable as on a plaint. The Privy Council, under those circumstances, held that the application, which was pending and had never been disposed of, should be treated as a plaint filed on the date of its presentation. The decision proceeded substantially upon the ground that the application for leave to sue in forma pauperis, being alive when the applicant paid the Court-fee, became a plaint as from the date of its filing. That ground has no application to the present case, where the petition for leave to sue as a pauper was heard on the merits and dismissed. In such a case there was no application alive at the date of the payment of the Court-fee on which such payment could operate so as to give it the retrospective effect of a plaint.

(3.) That is the essential difference between the two eases. We think that the present case is on all fours with that in Kashav Ramchandra V/s. Krishnarao Venkatesh (1895) I.L.R. 20 Bom. 508 by which we are bound. It is to be observed that that decision has been followed by the Calcutta and Allahabad High Courts.