Judgment

PALEKAR, J.:- The appellant is the son and legal representative of the original defendants to the suit, Kedarnath and Chanda Devil The respondents are the legal representatives of the deceased plaintiff, Dhanno Devi

On January 2, 1948 Dhanno Devi presented an application under O. 33, Rules 2 and 3 of the Code of Civil Procedure for permission to sue as a pauper in the Court of the First Civil Judge, Kanpur. The 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. Budhu Lal died in 1918 and on his death his widow Jumna Devi inherited the property. On Jumna Devi s death on December 26, 1935 Dhanno Devi, as the daughter was entitled to succeed to the property. The defendants were in possession and were falsely refusing to yield up their possession to Dhanno Devi and hence she was required to file the suit. A very large amount had to be paid as court fee which Dhanno Devi was not in a position to pay and hence she prayed that permission may be given to her to sue as a pauper. The last date for filing the suit was December 26, 1947 but as the courts were closed for X mas vacation the application had been presented to the court on January 2, 1948 i.e. on the re-opening of the court and thus it was claimed the suit was within limitation.

2. The defendants disputed the plalntiff Dhanno Devi s title contending that she was not the daughter of Budhu Lal. They also contended that the suit was barred by limitation.

3. The Trial Court negatived the contentions of the defendants and decreed the suit. That. decree was confirmed by the High Court of Allahabad by its Judgment dated March 31, 1965 in first Appeal No. 292/1955. The present appeal by special leave directed against the judgment of the High Court.

4. Since both the courts held that Dhanno Devi lied title to the house and the defendants had none, learned counsel for the appellant did not, rightly, press the contention with regard to Dhanno Devi s title to the property in suit. The only point pressed before us was with regard to limitation.

5. The point of limitation aries in this way. 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 C.P.C. If that date is regarded as the date on which the suit was properly instituted then there is no dispute that the plaintiff s suit is in time. But what happened was that on February 26, 1949, before the question of pauperism was formally decided by the court, the plaintiff s pleader asked for three months time to pay the court fee on the application by treating it as a plaint. The court granted this prayer and adjourned the case from time to time to enable her to pay the court fee. The last date so fixed was July 15, 1949. On that day the plaintiff did not appear, nor did she pay the court fee and consequently on July 18,1949 the following Order was passed by the court:

"Court fee still unpaid. The applicant did not press his application to sue in forma pauperis but offered to pay court fee. He did not do so till now.

ORDER

The application to sue as a pauper is dismissed with costs."

On August 13, 1949 the plaintiff filed an application for restoration of the case under Order 9 Rule 9 C.P.C. After hearing the defendants the court passed an order that the plaintiff should first pay the court fee and the costs of the defendants whereupon the application for restoration would be considered. Accordingly on November 12, 1949 the plaintiff paid the court fee and the defendant s costs. By his order dated April 15, 1950 the learned Judge held that the plaintiff had sufficient cause for not paying the court fee in time and restored the proceeding to the file after setting aside the order referred to above.

6. When the court fee was paid on the application i.e. on November 12, 1949, the suit would have been barred by time because, as alr