Kerala High Court
P. Sreedevi vs P. Appu on 3 August, 1990
Equivalent citations: AIR1991KER76, AIR 1991 KERALA 76, (1990) 2 KER LT 392 (1990) 2 KER LJ 352, (1990) 2 KER LJ 352
JUDGMENT
1. Appeal is by the plaintiff against the dismissal of her money suit on the ground of limitation.
2. Respondent's son married her in 1970. Thirty sovereigns of gold ornaments belonging to the appellant was utilised by the respondent for renovating his thatched building. Revision started in 1974 and completed in March, 1975. Ornaments were sold for that purpose on 23-1-1975. That fact was admitted by the respondent in Ext. A-1 Will executed by him on 16-6-1977. By that Will the building and the land on which it stands was bequeathed to the appellant. The Will was subsequently revoked. It was then that the application for permission to sue as an indigent person for the value of ornaments was filed on 19-1-1978. That was dismissed on 19-1-1979. C.M. Appeal 299 of 1979 filed against that decision was dismissed on 19-11-1981 granting two months' time to pay Court-fee on the ground that she suppressed her assets and means. Instead of paying Court-fee and converting the suit filed along with the application into a regular suit, she filed the present suit as a fresh suit on 27-11-1981 on payment of Court-fee. That is how the plea of limitation happened to be raised.
3. 23-1-1975 when the ornaments were sold, 9-1-1978 on which date appellant came to know of the revocation of Will and 19-1-1978 when the pauper O.P. was filed are the only dates alleged in the plaint as the dates on which cause of action arose. Among them, 9-1-1978 and 19-1-1978 have nothing to do with the cause of action, They are not relevant at all for considering the question of limitation. No acknowledgement was pleaded in the plaint for saving limitation. If so, limitation could have been computed only from 23-1-1975 on which date the cause of action arose. Ext. A-1 Will has nothing to do with the plaint claim. It was not executed in discharge of the plaint claim which was not admitted or acknowledged therein. Ext. A-l could take effect and rights could flow from it only on the death of the testator before which he could cancel the same. The Will was not having the effect of extinguishing the appellant's claim or consequently there is no question of the claim reviving when it is cancelled for the purpose of giving a fresh cause of action. If at all anything is involved, it is only a question of morality.
4. It must appear on the face of the plaint that the suit is within time. Otherwise the Court is bound under Section 3 of the Limitation Act to dismiss the suit on the ground of limitation even when limitation is not raised as a defence. An acknowledgement not pleaded cannot be relied on or proved. Still the trial Court said that Ext. A-l Will contains an acknowledgement and the suit would have been in time if it was filed within three years of Ext. A-l. The trial Court went wrong in considering an acknowledgement not pleaded.
5. On the merits also Ext: A-1 do not contain any such acknowledgement. There is only a statement in Ext. A-l that the building was repaired with funds obtained by selling approximately 30 sovereigns of gold ornaments of the appellant. He did not say that on account of this he incurred any liability to the appellant or any such liability is subsisting. In order to operate as an acknowledgement under Section 18 of the Limitation Act for the purpose of computing afresh period of limitation from that date there must be acknowledgement of a subsisting liability which is not already barred. It is true that the acknowledgement does not create a new right of action but merely extends the period of limitation. It is not necessary that the statement should indicate the exact nature or the specific character of the liability. But the words used in the statement must relate to a present subsisting liability and indicate the existence of a jural relationship between the parties such as that of a debtor and creditor and the intention to admit such jural relationship even though a promise to pay is not necessary. It is not necessary that the intention should be in express terms, it can be by implication also from the nature of the admission and the surrounding circumstances. A mere statement that appellant's ornaments were sold for the repair works without any admission of liability on that account cannot operate as an acknowledgement at all. The fact is that even-if Ext. A-1 is accepted as containing a valid acknowledgement, it will not help the appellant because even then the suit is out of time.
6. The final shelter was therefore under Section 13 of the Limitation Act. It is said that even though C.M.A. 299 of 1979 against the rejection of pauper O.P. 4 of 1978 was dismissed, this Court granted two months' time to pay Court-fee and the suit is within time because it was filed within that two months. I do not think that the contention could stand.
7. The present Section 13 of the Limitation Act has no analogous provision in the old Act of 1908. Such cases as would now come under Section 13 also were then considered under the discretionary powers of the Court under Section 5. The practice was that on rejection of the application in forma pauperis the Court gave time for Court-fee on payment of which the suit or appeal may be numbered without bar of time. Now Section 13 posits that where an application for leave to sue or appeal as an indigent person is made and that is rejected, the time spent in prosecuting that application in good faith shall be excluded. Where the applicant thereafter pays Court-fee, the Court may treat the suit or appeal as having been filed originally with full Court-fee. That provision has to be understood in the background of the legal conception that a suit or appeal filed as an indigent person commences from the moment an application for permission to sue or appeal in forma pa'uperis is filed. If for any reason a suit or appeal abates in its entirety, the application for permission to sue, appeal or continue in forma pauperis must necessarily fail as infructuous. No such questions or conceptions or contingencies may arise in a fresh suit filed independent of the pauper proceedings on payment of Court-fee. There is no question of such a suit or appeal being considered as continuation of anything to have the question of Court-fee being deemed to be paid at an early date from the inception of any other proceeding. In Vijay Pratap Singh v. Dukh Haran Nath Singh and another (AIR 1962 SC 941) the Supreme Court said that application to sue in forma pauperis is only a method for instituting the suit as an indigent person without Court-fee. Right to pay Court-fee is not now subject to any permission being granted by the Court at the time of rejecting the application for leave even though the Court is having the right to grant or extend time.
8. Section 13 has two parts. First part deals with exclusion of time spent in prosecuting the application to sue or appeal. The second part deals with payment of Court-fee after the application has been rejected and its consequences. The cumulative effect of the two parts which are interconnected is that the period between the date of application to sue or appeal and the date on which it was rejected shall be excluded if the prosecution was in good faith and Court-fee is paid. The power is specifically vested in the Court to admit the suit or appeal on payment of Court-fee for which time will, in the nature of things be granted. Section 5 is no longer tenable to such cases. What is now provided by removal of the anomaly by the insertion of Section 13 is permission after rejection of application for leave to sue or appeal as indigent persons made in good faith to register the suits or appeals on payment of the requisite Court-fee. No time limit is set out in Section 13 and it is obviously a matter of discretion of the Court as the word 'may' indicates. Court can extend time. That is only for payment of Court-fee prescribed for such suit or appeal. On such permission and payment of Court-fee what follows is that the period of prosecution of the application to sue or appeal is excluded from the period of limitation and by fiction of law the suit or appeal is permitted to be treated as having the same force and effect as if the Court-fee had been paid in the first instance when leave to sue or appeal was filed along with the suit or memorandum of appeal or otherwise.
9. Exclusion of limitation provided under Section 13 is different from the one provided in Section 14. What is excluded in Section 14 is the time during which another civil proceeding was prosecuted with due diligence relating to the same matter in issue in good faith in a Court which, from defect of jurisdiction or other cause of like nature became unable to entertain it. That provision is not applicable in cases coming under Section 13 which does not involve any inability of the court to entertain it. Section 13 is applicable only in cases where the court was competent to entertain the application to sue or appeal and it was rejected and then court fee paid. The force and effect given under Section 13 as one filed in the first instance with court-fee is to the suit or appeal originally filed without court-fee with an application for leave or otherwise. It is not necessary that application must have accompanied the suit or appeal memo. It can be subsequent also and : a regular suit or appeal also could be subsequently allowed to be prosecuted as an indigent person. It is the application or appeal originally filed as an indigent person along with an application for leave that is intended to be converted into a regular suit or appeal on payment of court-fee. When the application is granted, the suit or appeal will be numbered, registered and proceeded as provided in Order 33 Rule 8 or Order 44 Rule 1. Rejection of an application to sue or appeal as an indigent person does not ipso facto carry with it the rejection of the suit or memorandum of appeal filed along with it. The suit or appeal is a separate document which remains for disposal after rejection of the application and the Court has power under Section 149, Code of Civil Procedure to give further time for payment of court-fee and treat the court-fee as paid in the first instance. But such a power is not available when afresh suit [is filed out of time. After dismissal of the application the suit or appeal has to be revived on payment of court-fee, if necessary by getting extension of time. If that is not done and a fresh suit is filed it means the original suit or appeal is abandoned and it is having an automatic death. When a fresh suit is filed on payment of court-fee after expiry of the period of limitation the time spent in prosecution of an earlier application for leave to sue or appeal as an indigent person which was dismissed cannot be excluded. The exclusion is available only in the same proceedings which gets converted into a suit or appeal on -payment of court-fee. Court cannot enlarge the period of limitation prescribed under the Limitation Act and permit a time barred suit to be admitted. What is permitted is only exclusion of time by treating the same suit or appeal as having the force and effect as one filed at the first instance as if court-fee was paid then. Section 13 is permissible only for converting the same proceeding into a regular suit or appeal on payment of court-fee and it is not available when a fresh suit independent of the original proceeding is filed. The fresh suit which is filed as an independent proceeding later on payment of court-fee cannot be treated under Section 13 as having the force and effect as if court-fee was paid at an earlier date.
The suit was therefore rightly dismissed as Out of time. Appeal is dismissed without costs.