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1938 Supreme(Cal) 283
CALCUTTA HIGH COURT
S.K. Ghose, J., Patterson, J.
Kali Dasi Dasi - Appellant
Versus
Santosh Kumar Pal & Ors. - Respondent
Decided On : 25-07-1938
The judgment establishes the importance of preventing procedural defects from defeating the ends of justice, emphasizing a liberal construction of procedural rules to ensure fairness and equity in legal proceedings.
Headnote:
Limitation - Money Recovery - Civil Procedure Code - Section 149, Order 33 Rule 15 - Jagadiswari Debi and Others Vs. Tinkari Bibi and Others, AIR 1936 Cal 28, Alopi Pershad v. Mt. Gappi AIR (1937) Lah 151, Municipal Board Vs. Babu Ram Lal, AIR 1936 All 723, Ramakrishna Nadar and Another Vs. Ponnayya Thirumalai Vandaya Thevar and Others, AIR 1936 Mad 24 - The judgment discusses the application of Section 149 and Order 33, Rule 15 of the Civil Procedure Code in the context of limitation for a money recovery suit. It highlights conflicting judicial opinions and interpretations from different High Courts, emphasizing the liberal construction favored by the Calcutta view and the narrower interpretations based on a strict reading of the rules. The judgment ultimately supports the broader and more liberal view represented by the Calcutta decisions, emphasizing the need to prevent procedural defects from defeating the ends of justice.
Fact of the Case:
The plaintiff, an elderly Hindu widow, filed a suit for the recovery of money from defendants 1 to 4, alleging that they borrowed Rs. 2000 from her with a promise to pay interest. The defendants denied the claim, asserting that the suit was barred by limitation.
Finding of the Court:
The Subordinate Judge found the plaintiff's case on the merits to be true and held that the suit was not barred by limitation. The District Judge, however, took a different view, holding that the suit was time-barred due to the delay in the payment of costs. The present second appeal was filed by the plaintiff against the District Judge's decision.
Issues: The key issues revolved around the determination of the proper date of the institution of the suit for limitation purposes, the application of Section 149 and Order 33, Rule 15 of the Civil Procedure Code, and the bona fides of the plaintiff's application to sue as a pauper.
Ratio Decidendi: The judgment discusses conflicting interpretations of Section 149 and Order 33, Rule 15 of the Civil Procedure Code, emphasizing the need to prevent procedural defects from defeating the ends of justice. It also addresses the entitlement of the plaintiff to be excused the period during which the pauper application was pending and the application of Section 14 of the Limitation Act.
Final Decision: The appeal was allowed against defendant 1 with costs throughout, setting aside the decree of the lower Appellate Court and restoring that of the Court of first instance. The appeal against respondents 2, 3, and 4 was dismissed, and they were entitled to their costs from the appellant.
JUDGMENT
S.K. Ghose, J. - This is a second appeal by the plaintiff in a suit for recovery of money on the allegation that defendants 1 to 4 who are related to the plaintiff, an elderly Hindu widow, borrowed from her Rs. 2000 on 1st Agrahayan 1338 B. S. corresponding to 17th December 1931 promising to pay interest at 12 per cent. per annum. The loan was an oral one. The defence was that the claim was false, that there was no such loan and, further, that the suit was barred by limitation. The plaintiff brought the suit on 27th June 1934 within three years of the alleged transaction. At the same time she filed as application for permission to sue as a pauper. On 10th December 1934, the Subordinate Judge rejected the pauper application with costs, but it was not till 10th January 1935 that the robakari was drawn up stating that the costs amounted to Rs. 10-10-6 payable to Government and Rs. 16-7-0 payable to the defendants opposite parties. It was not stated that the costs were to be paid within a certain time nor does it appear that the robakari was signed by the plaintiff's pleader. Meanwhile, on 2nd January 1935, the plaintiff applied to have the pauper application containing the particulars of her plaint registered as a plaint in the suit on payment of proper court-fees for which time was asked for. It was stated in the application that 12 annas court-fee had already been paid, the balance payable being Rs. 209-4-0. It was further stated in the application that if the pauper application had been disposed of by the Court earlier, there would have been no difficulty in presenting a fresh plaint with full court-fees within the period of limitation; but since by the act of the Court the decision had been delayed the prayer was made for time u/s 149, Civil P.C. The Subordinate Judge granted the prayer and gave time till 10th January 1935 for payment of the court-fees. On that date the amount of the court-fees was paid in and accepted by the Court, and the application was directed to be registered as money suit No. 2 of 1935.
2. Thereafter, proceedings ensued in connexion with the suit and issues were framed, witnesses were summoned, etc. On 7th February 1935, the plaintiff paid to Government the costs payable by the robakari of 10th January 1935. There is nothing on the record to show that before ' the date the plaintiff was aware that this sum was payable to Government. The learned advocate for the plaintiff-appellant in this Court has stated that this payment was made on demand from Government, but there is nothing on the record to show that also. On 18th March 1935 the defendants filed written statements but nothing was said therein as to the non-payment of costs to the defendants or to Government. On 4th July 1935 the defendants filed additional written statements in which for the first time a plea was taken to the effect that the plaintiff could not bring the suit without paying the costs to the Government and the defendants and the following issues were suggested : (1) the plaintiff's suit is not maintainable as being barred by limitation; and (2) the plaintiff not having paid the costs to Government in the pauper application the suit is not maintainable. It is noteworthy that the non-payment of costs to the defendants was not suggested in the issues. However, on 27th July 1935 the plaintiff paid the costs to the defendants as directed by the robakari. Thereafter the suit went to trial.
3. The Subordinate Judge found that the plaintiff's case on the merits was true, and that there was absolutely no motive on the part of the plaintiff to bring a false case. On the question of limitation, it was contended on behalf of defendants that the suit was barred because the date 10th January 1935 must be deemed to be the date of the institution of the suit and, as it was not filed within three years from the date of the loan, the Court had no jurisdiction to extend the time after 10th December 1934 for payment of court-fees. On this questi
