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Bhajja v. Muhammad Said Khan
Summary of Opinion (Revision from Order Rejecting Application to Sue in forma pauperis)
Factual and Procedural Background
This is an application in revision against an order of a Subordinate Judge rejecting an application to sue in forma pauperis. The plaint was described by the courts as drawn in a "most inartistic way" and subject to many serious objections. The Subordinate Judge did not reject the plaint on the ground that the facts failed to show any infringed right, but rejected it on the separate ground that the suit was barred by limitation. On the question whether the applicant was a pauper, the court below found in the applicant's favour. The applicant sought revision of the order rejecting permission to sue as a pauper.
Legal Issues Presented
- Whether, when considering an application for permission to sue as a pauper (under Order XXXIII, rule 5), the court may inquire into and decide that the claim is barred by the law of limitation.
- Whether the statutory phrase "allegations do not show a cause of action" (as now used in the Code) includes cases in which the claim is time-barred by the law of limitation.
Arguments of the Parties
Applicant's Arguments
- The learned advocate for the applicant contended that it was not open to the court below to inquire into whether the claim, as presented in the plaint, was barred by limitation when deciding the application to sue in forma pauperis. In other words, the question of limitation should not be decided at the stage of permitting a pauper to sue.
The opinion does not contain a detailed, affirmative statement of the respondent's competing substantive arguments on the question whether the lower court was entitled to decide limitation at that stage; the text records that the learned advocate for the respondent was unable to point to material on the record supporting the lower court's factual assumption about when the applicant acquired knowledge of the alleged fraud.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Chattarpal Singh (Petitioner) v. Raja Ram (Opposite Party) (Full Bench) | Held that the phrase (in the old Code) must be read broadly: applicant must make out a good subsisting cause of action capable of enforcement and not barred by limitation or other law. | Used as the principal earlier authority that courts may consider whether a claimed cause of action is barred by limitation when allowing a pauper suit (under the wording of the old provision). |
| Kamrakh Nath v. Sundar Nath (Division Bench) | Acceptance of the Full Bench ruling in Chattarpal Singh. | Noted by the court as a subsequent acceptance of the Full Bench view. |
| Govindasami Pillay v. Municipal Council Kumbakonam (Madras High Court) | Acceptance of the Full Bench ruling (that limitation can be considered under the old wording). | Cited as another High Court following the Full Bench principle. |
| Dulari v. Vallabdas Pragji (Bombay High Court) | Acceptance of the Full Bench ruling. | Noted as a court that followed the Full Bench decision. |
| Allah Wasai v. Ramzan (Lahore High Court) | Acceptance of the Full Bench ruling. | Cited among the courts that followed the Full Bench principle. |
| Mst. Haur Kaur v. Munni Lal (Lahore High Court, single judge) | Followed the Full Bench decision under the new Code; did not consider the effect of the alteration in statutory wording. | Noted as a single-judge case under the new Code that followed the Full Bench but without discussing the change in legislative language. |
| Read v. Brown (Lord Esher) | Quoted and approved a definition of "cause of action" from Cooke v. Gill: "every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court." | Used to explain the proper meaning of "cause of action" and to distinguish "cause of action" from questions of limitation. |
| Cooke v. Gill | Source of the definition of "cause of action" cited in Read v. Brown. | Referenced as the origin of the definition relied upon by Read v. Brown; used for construing "cause of action." |
| Hari Nath Chatterjee v. Mothurmohun Goswami (Privy Council) | Emphasised that the law of limitation is intended to bar suits after a period and not to create or give a substantive right where none exists. | Relied upon to support the distinction that limitation bars the remedy (suit) but does not necessarily extinguish the underlying right. |
| Khunni Lal v. Gobind Krishna Narain (Privy Council) | Referred to statutory provision (Act XIV of 1859, s.1 cl.12) showing legislature distinguished between lapse of limitation period and date when cause of action arose. | Used to illustrate that the law treats the date of cause of action and the lapse of limitation as distinct matters. |
| Bombay, Baroda and Central India Railway Co. v. Mitthu | (Mentioned in context) Raises the question whether an interlocutory decision on limitation at the pauper stage would be binding in subsequent proceedings. | Cited in the passage discussing that a summary conclusion on limitation at the pauper-stage might not decide the suit or be binding on later proceedings. |
Court's Reasoning and Analysis
The court framed the question as whether the statutory phrase now reading "where his allegations do not show a cause of action" permits the court, when considering an application to sue as a pauper, to reject permission on the ground that the claim is time-barred. The reasoning proceeds through the following points, articulated and applied to the facts:
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Background statutory language and prior authority:
Under the old Code (s.407(c) of the 1882 Code) the phrase read “His allegations do not show a right to sue in such court.” A Full Bench had construed that phrase broadly to require that an applicant establish a subsisting cause of action capable of enforcement in court and not barred by limitation. Several subsequent courts accepted that view.
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Change in statutory wording:
The legislature altered the words to “do not show a cause of action.” The court considered competing inferences about the alteration: a commentator suggested it affirmed prior decisions; alternatively, it might show intent to clarify that the court's discretion was not limited to mere jurisdictional inquiries. The court found that the only directly-following case under the new Code did not discuss the effect of the alteration.
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Practical difficulty with partial application:
The Madras and Lahore High Courts had followed the Full Bench decision but cautioned against elaborate inquiry into limitation at the pauper stage—suggesting only simple cases should be dismissed summarily. The court rejected this partial approach: it would be arbitrary to draw a line between "simple" and "complicated" limitation questions; moreover, deciding limitation against an applicant at this stage could deprive him of appellate remedies because revision would generally not entertain an error of law on limitation where there is no jurisdictional defect, illegality, or irregularity.
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Distinction between right and remedy (limitation law):
The court emphasised authorities (including the Privy Council) that limitation statutes bar the remedy of enforcing an existing right after a period, rather than creating or extinguishing the substantive right in all cases. Where the right itself is extinguished by a statute (e.g., certain provisions cited), the position differs, but that is a statutory matter to be applied at the appropriate stage.
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Meaning of "cause of action":
Quoting Read v. Brown (and Cooke v. Gill), the court explained that "cause of action" means the facts which the plaintiff must prove to obtain judgment. That concept is distinct from the procedural question whether the remedy is barred by limitation. The court observed that various provisions of the Code (Order II, Order VII rules) treat the date of the cause of action and local jurisdiction separately from limitation considerations.
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Distinction between rejection and dismissal:
The court contrasted rejection of a plaint under Order VII, rule 11 (an appealable order) with dismissal under section 3 of the Limitation Act (which enjoins dismissal where the claim is barred). The court concluded that "cause of action" in Order VII, rule 11, does not mean a claim that remains enforceable under the law of limitation; otherwise the legislature could have used clearer words like "a right to sue capable of enforcement" (the older phrasing).
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Proper stage for deciding limitation:
The court held that postponing the question of limitation is appropriate: once the plaint is admitted, the defendant may move under Order VII, rule 11(d) or the court may act suo motu to reject the plaint if it plainly appears from the plaint that the suit is barred. Thus, determining limitation can and should, generally, wait until after the pauper admission stage.
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Application to the present facts:
The court found that the lower court had unnecessarily examined the question of limitation and assumed facts (that the applicant knew more than three years earlier of the alleged omission) that were not established by the record. The alleged admission in the plaint (paragraph 12) did not amount to the earlier date asserted by the lower court.
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Conclusion of analysis:
Given that the court below found pauperism and that the limitation issue should not be summarily decided at that stage, the court concluded the lower court erred in rejecting the plaint solely on the opinion that the claim would be time-barred and therefore allowed the revision.
Holding and Implications
Holding: The revision is allowed, the order of the Subordinate Judge rejecting permission to sue in forma pauperis is set aside, and the matter is remitted to the court below with directions to restore the plaint and dispose of the suit according to law.
Implications and immediate consequences:
- The court held that a finding of pauperism in favour of the applicant should not be negated by a summary conclusion at the pauper admission stage that the claim is barred by limitation; the question of limitation is generally to be decided after the plaint has been admitted, with available procedural safeguards (e.g., rejection under Order VII, rule 11(d) after admission).
- The opinion distinguishes between a "cause of action" (the facts needed to support a claim) and the separate procedural question whether that claim is time-barred; thus, the phrase "does not show a cause of action" should not be read to mean "not enforceable because of limitation."
- Direct effect on the parties: the lower-court order rejecting the application to sue as a pauper is vacated; the plaint is to be restored and the suit proceeded with in accordance with law. The court did not purport simply to grant or deny any substantive relief on the merits of the underlying claim.
- The court emphasised procedural fairness: summary disposal of the limitation question at the pauper-admission stage is inappropriate where the record does not plainly establish the bar of limitation; factual assumptions by the lower court in that respect were not supported by the pleadings in this case.
Note: This summary is strictly confined to the statements and reasoning contained in the provided opinion and does not add or infer facts or holdings beyond that text.
Sulaiman and Young, JJ.:— This is an application in revision from an order rejecting an application to sue in formâ pauperis. The plaint has been drawn up in a most inartistic way, and it is open to many serious objections. The learned Sub-ordinate Judge, however, has not rejected the plaint on the ground that the facts mentioned therein do not show that any right of the plaintiff has been infringed for which there is a remedy in law, but has rejected it on the ground that the suit is barred by limitation. On the question of the applicant's pauperism the finding is in his favour.
The learned advocate for the applicant contends before us that it was not open to the court below to inquire into the question whether the claim, as put forward in the plaint, was or was not barred by the law of limitation. The court below has proceeded under order XXXIII, rule 5, which makes it obligatory on the court to reject an application for permission to sue as a pauper where, inter alia, the allegations of the plaintiff do not show a cause of action. The question for consideration is whether these words include the case where the claim is time barred.
Section 407(c) of the Code of Civil Procedure of 1882 had the following words: “His allegations do not show a right to sue in such court.” On those words it was held by a Full Bench of this Court in the case of Chattarpal Singh…(Petitioner); v. Raja Ram…(Opposite Party).* (1) that the words must not be read as limiting the court's discretion to merely ascertaining whether the “right to sue” arose within its jurisdiction, but had a more extended meaning, namely, that an applicant must make out that he has a good subsisting cause of action, capable of enforcement in court, and calling for an answer, and not barred by the law of limitation or any other law. This ruling was, of course, accepted by a Division Bench of this Court in the case of Kamrakh Nath v. Sundar Nath (2), and also by the Madras High Court in Govindasami Pillay v. Municipal Council Kumbakonam (3), the Bombay High Court in Dulari v. Vallabdas Pragji (4) and the Lahore High Court in Allah Wasai v. Ramzan (5), as well as some other Courts.
The legislature has altered the words of the old section, and now they read as “where his allegations do not show a cause of action”. It has been suggested by a commentator that the alteration shows the intention of the legislature to affirm the decisions under the old section. On the other hand, it may equally well be suggested that the alteration is intended to make it clear that the court's discretion was not limited to merely ascertaining whether the right to sue arose with in its own jurisdiction.
The only case under the new Code in which the Full Bench decision has been directly followed, and which has been brought to our notice, is a single Judge case of the Lahore High Court, Mst. Haur Kaur v. Munni Lal . But the judgment in that case does not consider the effect of the alteration in the law.
The Madras and Lahore High Courts, which have followed the Full Bench decision of this Court, have felt constrained to lay down that the section does not mean that the court should enter into an elaborate examination of the question of limitation, but should throw out the plaint only where the matter is simple. It is very difficult to agree to this partial application of the principle laid down in the old Full Bench case. One does, not see where to draw the line. One court may consider the question of limitation simple, while another court may consider it a complicated one. If it is the duty of the court to reject an application where it is barred by time, it would be immaterial whether the conclusion is arrived at summarily or after examining the question in some elaborate detail. A question of limitation is often a substantial question of law, and if decided against the applicant it would deprive him of a right to go to an appellate court and have the matter re-examined. In revision an error of law on a question of limitation cannot be entertained as there would be neither want of jurisdiction, nor illegality nor irregularity.
A plaintiff whose right has been infringed may well have a cause of action against the defendant, and yet his right to sue in a court of law, after a fixed period, may have become barred by time. The law of limitation bars the remedy and does not in all cases extinguish the right; for instance, a claim to recover a debt may not be enforceable after a certain period of time, and yet the debt may exist and may furnish sufficient consideration if the amount is paid. Where, as in section 28 of the Limitation Act, the right itself is extinguished, the position would be different. There is nothing in the explanation to section 3 of the said Act which enjoins upon the court a duty to dismiss the application to sue as a pauper merely because in its opinion the suit itself would be barred by time. It merely lays down the date on which the suit is to be deemed to have been instituted.
Their Lordships of the Privy Council, in the case of Hari Nath Chatterjee v. Mothurmohun Goswami clearly exphasised that “the intention of the law of limitation is not to give a right where there is not one, but to interpose a bar after a certain period to a suit to enforce an existing right.” The bar is created by the law of limitation against a suit to enforce an existing right. It is clear that the bar of limitation does not necessarily extinguish the right, but the right, though existing, becomes unenforceable in a court of law. Section 1, clause (12), of Act XIV of 1859 laid down that no suit shall be brought to enforce the right after the lapse of 12 years “from the time the cause of action arose”. Their Lordships of the Privy Council in the case of Khunni Lal v. Gobind Krishna Narain referred to Section 1, clause (12), of Act XIV of 1859, which provided that no suit could be brought after the lapse of 12 years from the time the cause of action arose. Obviously the legislature in that enactment had in mind the distinction between the lapse of the period of limitation and the date when the cause of action arose. The two were not identical. A similar observation might be made with regard to article 120 of the new Limitation Act, under which the right to sue becomes barred after the expiry of 6 years from the date when the right to sue accrues.
If the court were bound to go into the question whether the suit itself was barred by time, it may decide that it was not so barred. There would be no case decided and no revision would lie; Bombay, Baroda and Central India Railway Co. v. Mitthu . Would such an order be binding in the suit or the appeal? Certainly it would not. It may also be noted that the Court Fees Act is a fiscal measure, and it is the Government which is principally concerned in the matter, the defendant not being directly affected by the grant of a permission to the plaintiff to sue as a pauper.
Unfortunately the term “cause of action” has not been defined anywhere in the Code of Civil Procedure or in any other statutory enactment. In Read v. Brown Lord Esher, M.E, quoted the definition oi. “cause of action” as given in Cooke v. Gill with approval, and laid down that “cause of action” means “every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to prove.” Literally, of course, “cause of action” means cause which can give rise to an action. A right to sue accrues when a right has been infringed and there is a remedy recognized by law.
An examination of some of the provisions of the Code of Civil Procedure would show that the legislature had this distinction clearly in mind. Section 20 prescribes that every suit shall be instituted in a court within the local limits of whose jurisdiction the cause of action, wholly or in part, arise. Here the law of limitation is obviously not in contemplation. Order II, rules 3, 6 and 7, which deal with joined of several causes of action, do not also contemplate any rule of limitation barring the claim.
Order VII, rule 11, also enjoins upon the court the duty to reject the plaint in every case where it does not disclose a cause of action. It is not confined to suits in formâ pauperis. Rule 13 of that order allows the plaintiff to present a fresh plaint in respect of the same cause of action. It may be doubted whether the legislature has intended that where a plaint has been rejected on the ground that the claim is barred by limitation the plaintiff would be at liberty to file a fresh plaint either without any new allegations or with new allegations showing an exemption from the law of limitation.
Order VII, rule 1(e), requires that the plaint shall contain the particulars as to the facts constituting the sause of action and wren it arose. This obviously requires that the date of the cause of action should be given in the plaint. This date is not identical with the date of the institution of the suit. The question whether the prescribed period of limitation from the date of the cause of action has or has not expired is obviously not a part of the cause of action of the plaintiff. When the suit is barred by time, it cannot be said that the plaint does not disclose, a cause of action, but it rather appears that the claim based on the cause of action disclosed by the plaint is barred by the law of limitation.
Where the claim is barred by limitation, section 3 of the Limitation Act enjoins upon the court the duty to “dismiss the suit”. On the other hand, order VII, rule 11, enjoins a duty to “reject” the plaint when it does not disclose a cause of action. The dismissal of the suit and the rejection of the plaint are not identical terms. In one case a decree is passed, in the other case it is merely an appealable order.
We, therefore, think that the “cause of action” as used in order VII, rule 11, does not mean a claim which is still enforceable under the law of limitation. Had such been the intention of the legislature, it could very easily have said “a right to sue capable of enforcement”, the words which were used in the old Full Bench case of this Court.
No difficulty is created by the postponement of the question whether the suit is barred by time, for, after the plaint has been admitted, the defendant can move the court, or the court may act suo motu, under order VII, rule 11(d) and reject the plaint on the ground that the suit “appears from the statement in the plaint to be barred” by the law of limitation.
In the present case the court below has not only gone into the question of limitation and considered several reported cases, which question in our opinion is wholly unnecessary at this stage, but has also assumed that it was admitted by the applicant that more than three years before the filing of the application he came to know that the opposite party had not entered the items in question in the second sarkhat, which as alleged in the plaint were fraudulently left out. The learned advocate for the respondent is unable to draw our attention to anything on the record which would support this, except the allegation in paragraph 12 of the plaint. But that allegation merely was that “during the course of” suit No. 38 of 1925 the sarkhat was called for, and it was at that time that the plaintiff came to know of the dishonesty and fraud of the defendant. The admission did not amount to saying that the sarkhat was summoned in the year 1925 or that the knowledge came to the plaintiff in that year.
We think that when the court found that the plaintiff was a pauper and was unable to pay the court fees, it ought not to have rejected the plaint on the mere ground that in its opinion the claim, if entertained, would be barred by time. That is a question which can be properly decided after the plaint has been admitted. We accordingly allow this revision, and, setting aside the order of the court below, send the case back to that court with directions to restore it and dispose of it according to law.
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