The suit can be maintained on the original consideration independently of the hand-note.

ORDER

D.N. Mitter, J. - Two questions fall for determination in this Rule: (1) the question of limitation and (2) the question of the maintainability of the suit. The facts which are relevant for the purpose of determining the first question are as follows: It appears that on 23rd March 1936 the plaintiff who is now the opposite party, applied for permission to sue in forma pauperis for recovery of a certain sum of money. He was examined on 24th. His petition was immediately rejected and thereupon he asked for permission to put in the full court-fees on the plaint and he was given a month's time from that date to put in the court-fees. He did actually put in the whole court-fees on 15th April 1936. It is contended that money having been borrowed according to the allegation in the plaint on 24th March 1933 the suit was barred by limitation as the full court-fees were paid on 15th April 1936, more than three years after the date of the bond. This contention was negatived by the Small Cause Court Judge and in my opinion rightly negatived. Section 3(by the explanation to that section) enacts:

A suit is instituted, in ordinary oases, when the plaint is presented to the proper officer; in the case of a pauper, when his application for leave to sue as a pauper is made....

and according to the explanation the suit is within time. It is argued by Mr. Chakravarty who obtained this rule that explanation might apply to the case of a person who has been found to be a pauper and not to the case of a person whose application to sue in forma pauperis has been rejected on the ground that he is not a pauper. This is a plausible argument; for it may be said that in that case, when he is not found to be a pauper, the application in forma pauperis is not by a pauper within the meaning of Section 3 and there are some authorities in support of this contention: see the cases in Keshav Ramchandra v. Krishnarao Venkatesh (1896) 20 Bom 508 and Naraini Kuar v. Makhan Lal (1895) 17 All 526. But it has been held in this Court and also in other Courts that if the application be not granted the applicant may pay the court-fees on the plaint already presented and that the date of the institution of the suit will be the original date when the plaint was actually presented with the application. There is a decision of this Court where Sir Francis Maclean, C.J. and Banerjee, J. came to this conclusion in a Letters Patent Appeal: see the case in Janakdhari Sukul v. Janki Koer (1901) 28 Cal 427. The same view has been taken in Madras: see the case in Nellavadivu Ammal v. Subramania Pillai AIR 1918 Mad 1039. I am not prepared to dissent from the view taken in Janakdhari Sukul v. Janki Koer (1901) 28 Cal 427 and I think the contention raised by the applicant before me must be overruled. The suit, in my opinion, was in time. The second question raises a point which frequently arises before the Courts and that is this: as to whether a suit can lie on the original consideration when the hand-note which evidences the loan is found to be inadmissible by reason of certain provisions of the statute. It appears that after taking the loan the defendant executed a hand-note which has been marked Ex. 1 to the following effect:

On demand I promise to pay both principal and interest either to you (the tender) or to your order or bearer the sum of Rs. 175 with interest at 3 per cent. per rupee per month.

2. This hand-note is not in accordance with law having regard to the provisions of Section 25, Paper Currency Act. The question is whether the hand-note being out of the way the suit would lie. The question came up for consideration before their Lordships of the Judicial Committee in somewhat similar circumstances in Sadasuk Janki Das v. Kishan Pershad AIR 1918 P C 146. In that case it appeared that on 14th April 1910 one Mohan Lal borrowed from the plaintiffs who were the appellants before the Privy Council a sum of Rs. 35,000 and to secure repayment drew and accepted in their favour