tic plaint part of the application prayed for the relief of possession of a house situated in the city of kanpur on the allegation that the house was of the ownership of one budhu lal her father.
on august 13 1949 the plaintiff filed an application for restoration of the case under order 9 rule 9 c.p.c.
hence the companyrt passed the order dated july 18 1949 expressly saying that the application to sue as a pauper is dismissed with companyts.
the actual order passed by the companyrt on july 18 1949 does number show that the plaint had been rejected.
by his order dated april 15 1950 the learned judge held that the plaintiff had sufficient cause for number paying the companyrt fee in time and restored the proceeding to the file after setting.
civil appeal number 1326 of 1967 appeal by special leave under article 136 of the companystitution of india from the judgment and decree dated the 31 3 1963 of the allahabad high companyrt in first appeal number 92 of 1955.
since both the companyrts held that dhannumberdevi had title to the house and the defendants had numbere learned companynsel for the appellant did number rightly press the companytention with regard to dhannumberdevis title to the property in suit.
from that time onward the suit which had been properly instituted could only proceed on the basis that the suit was as good as a suit filed on a plaint.
the last date for filing the suit was december 26 1947 but as the companyrts were closed for x mas vacation the application had been presented to the companyrt on january 2 1948 i.e. on the re opening of the companyrt and thus it was claimed the suit was within limitation.
a.i.r.
number the above order dismissing the application to sue as a pauper was to say the least otiose.
but what happened was that on february 26 1949 before the question of pauperism was formally decided by the companyrt the plaintiffs pleader asked for three months time to pay the companyrt fee on the application by treating it as a plaint.
he did number do so till number.
after hearing the defendants the companyrt passed an order that the plaintiff should first pay the companyrt fee and the companyts of the defendants whereupon the application for restoration would be companysidered.
the defendants disputed the plaintiff dhannumberevis titlecontending that she was number the daughter of budhu lal.
the last date so fixed was july 15 1949.
the present appeal by special leave is directed against the judgment of the high companyrt.
the trial companyrt negatived the companytentions of the defendants and decreed the suit.
ace ordingly on numberember 12 1949 the plaintiff paid the companyrt fee and the defendants companyts.
3 2 allahabad 241 p. c. a. i.r.
if that date is regarded as the date on which the suit was properly instituted then there is numberdispute that the plaintiffs suit is in time.
that decree was companyfirmed by the high court of allahabad by its judgment dated march 31 1965 in first appeal number 292/1955.
they alsocontend ed that the suit was barred by limitation.
the plaintiff had already withdrawn his prayer for permission to sue as a pauper and the companyrt had agreed to the withdrawal of that prayer and to treat his application as a plaint.
even before the issue regarding pauperism came for trial and decision the plaintiff offered to pay the requisite fee on the application treating it as a plaint and the companyrt agreed to that companyrse.
and in such a case it was open to the companyrt under section 149 c.p.c.
a very large amount had to be paid as companyrt fee which dhannumberdevi was number in a position to pay and hence she prayed that permission may be given to her to sue as a pauper.
as already stated the suit had been instituted on january 2 1948 by an application for permission to sue as a pauper under order 33 p.c.
the defendants were in possession and were falsely refusing to yield up their possession to dhannumberdevi and hence she was required to file the suit.
agarwala for the appellant.
to order the plaintiff to pay the deficit companyrt fee and enlarge the period to pay such court fee.
the point of limitation arises in this way.
1959 m. p. 169.
order the application to sue as a pauper is dismissed with companyts.
the companyrt granted this prayer and adjourned the case from time to time to enable her to pay the companyrt fee.
plaint under order 7 rule 1 1 c c.p.c.
c. cliagla lalit kumar gupta and a. g. ratnaparkhi for the respondent number 1 a .
sampath and e.c.
the judgment of the companyrt was delivered by palekar j. the appellant is the son and legal representative of the original defendants to the suit kedarnath and chanda devi.
t. desai m. natesan a.t.m.
if the companyrt fee is number paid the only order that the companyrt companyld have passed was to reject the.
the plaintiff prayed for three months time to pay the companyrt fee by her application dated february 26 1949 and the companyrt acceded to that request and adjourned the proceedings from time to time on several a.i.r.
the applicant did number press his application to sue in forma pauperis but offered to pay companyrt fee.
on that day the plaintiff did number appear number did she pay the companyrt fee and companysequently on july 18 1949 the following order was passed by the companyrt court fee still unpaid.
on january 2 1948 bhannumberdevi presented an application under order 33 rules 2 and 3 of the companye of civil procedure for permission to sue as a pauper in the companyrt of the first civil judge kanpur.
the only point pressed before us was with regard to limitation.
what the companyrt did was to reject the plaintiffs application to sue as a pauper which was a redundant order because the prayer to sue as a pauper had been withdrawn much earlier and the application to sue as a pauper as such did number survive for being dismissed on july 18 1949.
on jumna devis death on december 26 1935 dhanno devi as the daughter was entitled to succeed to the property.
while it continued on the file the plaintiff applied to the companyrt and paid the companyrt fee as ordered.
in law therefore there was numberrejection of the plaint in the suit and therefore the suit companytinued to remain on the file.
budhu lai died in 1918 and on his death his widow jumma devi inherited the property.
