1973 (8) TMI 164 - SC - Indian Laws

Summary

Issues Involved:
1. Plaintiff's Title to the Property
2. Limitation Period for Filing the Suit
3. Validity of the Application to Sue as a Pauper
4. Interpretation of Order 33 of the Civil Procedure Code
5. Authority of the Court to Restore Proceedings

Detailed Analysis:

1. Plaintiff's Title to the Property:
The defendants disputed the plaintiff Dhanno Devi's title, contending that she was not the daughter of Budhu Lal. Both the Trial Court and the High Court of Allahabad held that Dhanno Devi had title to the house and the defendants had none. Consequently, the learned counsel for the appellant did not press the contention regarding Dhanno Devi's title to the property in the Supreme Court.

2. Limitation Period for Filing the Suit:
The primary issue pressed before the Supreme Court was the limitation period. The suit was instituted on January 2, 1948, by an application for permission to sue as a pauper under Order 33 of the Civil Procedure Code (C.P.C.). If this date is regarded as the date of proper institution, the suit is within the limitation period. However, the plaintiff did not pay the court fee by July 15, 1949, leading to the dismissal of the application to sue as a pauper on July 18, 1949. The plaintiff later paid the court fee on November 12, 1949. The appellant contended that the suit was barred by limitation as the court fee was paid after the permissible period.

3. Validity of the Application to Sue as a Pauper:
The Supreme Court examined whether the application to sue as a pauper, presented on January 2, 1948, could be considered as the proper institution of the suit. The Court referred to Section 26 of the C.P.C., which allows a suit to be instituted by the presentation of a plaint or in a prescribed manner, including an application under Order 33. The Court cited Vijay Pratap Singh v. Dukh Haran Nath Singh, which held that a suit by a pauper is instituted when the application for permission to sue as a pauper is presented.

4. Interpretation of Order 33 of the Civil Procedure Code:
Order 33, Rules 2 and 3, provide the manner in which a suit by a pauper is instituted. Rule 8 states that when permission to sue as a pauper is granted, the application is deemed to be a plaint filed on the day it was presented. The Court acknowledged the judicial conflict on whether a suit is instituted when a petition to sue as a pauper is presented or only when permission is granted. The Supreme Court resolved this by affirming that the suit commences from the moment the application is presented.

5. Authority of the Court to Restore Proceedings:
The Supreme Court discussed the court's authority to permit the application to sue as a pauper to be treated as a plaint and to extend the time for payment of court fee. The Court noted that the plaintiff had offered to pay the court fee, and the court had agreed to treat the application as a plaint. The dismissal of the application to sue as a pauper on July 18, 1949, was deemed redundant since the plaintiff had already withdrawn the prayer to sue as a pauper. The Court concluded that the suit continued to remain on the file, and upon payment of the court fee, the suit was deemed properly filed on January 2, 1948, thus within the limitation period.

Conclusion:
The Supreme Court dismissed the appeal, holding that the suit was properly instituted on January 2, 1948, and was within the limitation period. The plea of limitation made on behalf of the defendants failed. The appeal was dismissed with costs.