AMAR RAI Vs. DHARICHHAN RAI

JUDGEMENT

(1.) This is an appeal by the defendants against a decision of the Court of appeal below confirming a decision of the Munsif of Arrah. Plaintiff is the son of Mitar Rai. During his minority the wife of Ragho, Mitar Rai's brother, executed three rehan bonds in respect of the plaintiff's property in favour of defendants 1 and 2. She also executed another bond in favour of defendant 3. In all these bonds the executant purported to act as the guardian of the plaintiff. On 27 November 1941, the plaintiff applied for leave to institute a suit for a declaration that the bonds were not binding on him and for recovery of possession of the properties covered by these bonds. While this application was pending, on 17 September 1942, the plaintiff paid the court-fee. The defence to the suit was three-fold: first, that it was barred by limitation as it was alleged that it had not been instituted within three years of the plaintiff's attaining majority; secondly, that there was no legal necessity for the execution of the bonds; and, thirdly, that, in any case, the defendants had acquired title by adverse possession. The Court of first instance found that the plaintiff was born on 18 August 1921, and, therefore, attained majority on 18 August 1935, with the result that the suit was within time. With regard to the question of legal necessity the Court held that two of the bonds were without legal necessity, and two of them were supported by such necessity. In the result, it was held that the plaintiff was entitled to recover unconditionally the property mortgaged by the bonds for which there was no necessity and that he was entitled to recover possession of the other properties on payment of the amount of the consideration for those bonds. An appeal by the defendants was dismissed.

(2.) The date of the plaintiff's birth having been found by both the Courts below on the evidence before them, that finding is binding on us in second appeal. The only question which arises is with regard to the date on which this must be taken to have been instituted. On behalf of the defendants-appellants, it is contended that the suit must be taken to have been instituted on 17 September 1942, when the court-fee was paid. If this contention be correct, the suit is barred since the date on which the court-fee was paid was more than three years from the date on which the plaintiff attained majority. But for observations in certain decisions which have been brought to our notice, one would have thought that the statute was sufficiently clear as to the date a suit instituted in forma pauperis is to be taken to have been instituted. The Explanation to Section 3, Limitation Act is quite explicit that a suit is instituted in the case of a pauper when his application for leave to sue as a pauper is made. There are, however, observations in some cases in which it has been suggested that such a suit is to be taken as instituted on the date when the court-fee is paid. Such a case is Chunna Mal V/s. Bhagwant Kishore A.I.R. 1986 All. 584. The facts of that case were, however, that the court-fee was not paid until after the application to sue in forma pauperis had been dismissed. Observations, therefore, with regard to what the position would be in law in a case in which the court-fee is paid before the disposal of the application to sue in forma pauperis must be regarded as obiter. In Stuart Skinner V/s. William Orde 2 All. 241, the Privy Council held that when a person, being a pauper, petitions to sue in forma pauperis and afterwards, pending enquiry into his pauperism, obtains funds and pays the court-fees required for his suit, and his petition is, on such payment, numbered and registered as a plaint, his suit must be deemed to have been instituted from the date when he filed his pauper petition, and not when he paid the court-fees; and limitation for the suit runs against him only up to the former date. This, it is true, was a decision before the enactment of the present Code of Civil Procedure.

(3.) It was also a case that arose before the enactment of the Explanation to Section 3, Limitation Act. The present Civil Procedure Code, so far from rendering this decision obsolete, has precisely the contrary result, for by Section 149 the Court is now expressly empowered to extend the time for the payment of court- fees. In this Court in the Bank of Bihar Ltd. V/s. Ramchanderji Maharaj A.I.R. 1929 Pat. 637, it was held that if, under Section 149, the Court, while refusing leave to sue in forma pauperis, permits the requisite stamp to be paid within a certain time, and it is so paid, the plaint would be deemed to have been validly presented on a proper court-fee on the date when it was originally filed. The only other decision of our Court to which our attention has been drawn is Lala Mistry v. Ganesh Mistry A.I.R. 193 Pat. 120. All that that case decided was that the power to permit an application to sue in forma pauperis to be converted into a plaint by payment of the court-fee can be exercised at the time of rejecting the application and not afterwards. It does not purport to define the legal position when the court-fee is paid during the pendency of the application for leave to sue in forma pauperis. In Bhusan Chandra Ghose V/s. Kanai Lal Sadhu Khan , a single Judge of the Calcutta High Court held that the suit of a person who applied to sue as a pauper must be deemed to have been instituted when his application was made, although the application may be refused, and he may thereafter pay the court-fee within the time allowed, but at a date when limitation has expired. There is, therefore, no authority in support of the contention of the appellants. It was, however, contended that where the application to sue in forma pauperis is mala fide the plaintiff is not entitled to have his suit regarded as having been instituted from the date on which the mala fide application was made. However that may be, this case is not of that nature, for the Court below has held that the application to sue in forma pauperis was bona fide. The appeal must, therefore, be dismissed with costs. Narayan J. I agree.