JUDGMENT
Maclean, C.J.
1. To my mind this case is covered by the decision of the Judicial Committee of the Privy Council in the case of Skinner v. Orde (1879) I.L.R. 2 Cal. 389 I.A. 126. I dissent from the view taken by the Allahabad High Court in the case of Abbasi Begam v. Nanhi Begam (1896) I.L.R. 18 All. 206 and I do not think that the grounds upon which that Court distinguished the case before it from the case of Skinner v. Orde (1879) I.L.R. 2 Cal. 389 I.A. 126 are well founded. It is true that Skinner v. Orde (1879) I.L.R. 2 Cal. 389 I.A. 126 was decided under a Procedure Code other than the present, viz., under Act VIII of 1859, but the language of Section 310 of that Code is, in substance, the same as Section 413 of the present Code, except that the words “unless precluded by the rules for the limitation of suits” are excluded from Section 413 of the present Code. The exclusion of those words in the present Code does not appear to me to strengthen the argument upon which the Allahabad decision proceeded. Then, as regards the suggestion that the Privy Council decision rested to some extent upon some supposed practice in the Courts of India, all that the Judicial Committee said was, “although the analogy is not perfect, what has happened is not at all unlike that which so commonly happens in practice in the Indian Courts, that a wrong stamp is put upon the plaint originally and the proper stamp is afterwards affixed.” I do not think that it can be fairly inferred from the language that the decision was based upon some supposed practice in the Indian Courts. On the contrary ample, and if I may say so respectfully, very forcible reasons for their decision are clearly stated in the judgment of the Judicial Committee.
2. In the view I take, it is unnecessary to deal with the other cases which have been cited.
3. The appeal must be allowed, and the case must go back to the Lower Appellate Court to try the other issues and questions in the case. The appellant must have the costs of this appeal and the costs of the appeal before Mr. Justice Wilkins, and of the appeal before the District Judge.
Banerjee, J.
4. I am of the same opinion. The question raised in this case is, whether the suit should be regarded as instituted on the day upon which the application for leave to sue in forma pauperis was filed, or whether it should be treated as having been instituted on the day on which the Court fee was paid. Upon that question the case of Skinner v. Orde (1879) I.L.R. 2 All. 241; L.R. 6 I.A. 126 is clear authority in favour of the view that the suit should be treated as having been instituted on the day on which the application for leave to sue in forma pauperis was made. Mr. Justice Wilkins in taking the other view, namely, that the suit should be regarded as instituted on the day the Court fee was paid, has followed the decision of the Allahabad High Court in the case of Abbasi Begam v. Nanhi Begam (1896) I.L.R. 18 All. 206 which distinguishes the case decided by the Privy Council from a case like the one before us, on the ground that the case before the Privy Council was decided with reference to the former Procedure Code, and to what was supposed to be the practice in India relating to the payment of Court fees; but, as has been pointed out in the Judgment of the learned Chief Justice, these two points of distinction are not really material points of distinction at all. It is quite true that under the former Code of Civil Procedure Act VIII of 1859 as well as the present, where an application for leave to sue as a pauper is rejected, and the applicant institutes a suit in the ordinary manner, the rules of limitation apply to his case, and his suit should be regarded as instituted on the day on which he presents his fresh plaint. That, however, was not the case here; what happened here was that, after the application for leave to sue as a pauper was made, and the defendants had put in their petition of objection opposing the application, the applicant for leave to sue as a pauper offered to put in the proper Court fee, and asked the Court to treat his application as a plaint. That was done, and that is exactly what happened in the case of Skinner v. Orde (1879) I.L.R. 2 All. 241; L.R. 6 I.A. 216.
5. S. & of the Limitation Act, when it says, in the Explanation, that a suit in the case of an application for leave to sue as a pauper is to be treated as instituted when the application for leave to sue is filed, must no doubt be taken to have reference to a case, in which such application is granted; and it is not intended to apply to a case in which the application to sue as a pauper is rejected. In the present case the application for leave to sue as a pauper was neither granted nor rejected, for this simple reason that the case had not arrived at the stage at which the Court had to determine the question of granting or rejecting the application, because the applicant offered to pay the Court fee whilst the application was pending. The view taken by the Allahabad High Court is this, that, unless the application for leave to sue as a pauperis granted, the institution of the suit cannot be said to date from the day of the filing of that application, and that in a case like the present, the suit must be treated as being instituted on the day on which the Court fee is paid. But this is not what their Lordships of the Privy Council say with reference to such a case. In Skinner v. Orde (1879) I.L.R. 2 All. 241; L.R. 6 I.A. 216 after referring to Sections 308 and 310 of the former Code of Civil Procedure, under which that case was decided, and which correspond to Sections 410 and 413 of the present Code, their Lordships say: “But this case is one which the statute has not in terms provided for. The intention of the statute evidently was that, unless the petition was rejected, as it contained all the materials of the plaint, it should operate as a plaint without the necessity of filing a new one. Then what are the facts in this case? The petition is filed and proceedings are taken to enquire into the pauperism, which are delayed by various orders of the Court, after the plaintiff had been already bandied about from one Court to another, until a very considerable period of time has elapsed. Then pending that enquiry the plaintiff by paying the amount of stamp fees into Court admits that he is no longer desirous to sue as a pauper, and gives up so much of the prayer of his petition as asks to be allowed so to sue, but no more. The defendant, so far from being a sufferer by that change, is benefited, as both parties will go on with the litigation on equal terms. Is there, then, anything in the Act which requires that in such a state of things the petition of plaint shall be rejected altogether, and the plaintiff he compelled to commence de novo? Their Lordships do not see their way to the middle course followed by the Court in holding that the petition was coverted into a plaint from the date of the payment of fees. To be logical, the Court should have rejected it altogether. The petition of plaint was placed upon the file and numbered on the 19th July 1873, and this is the plaint that is allowed to go on.
6. These are remarks that fully apply to the facts of this case, and, it must be held in this case, as was held by their Lordships in Skinner v. Orde (1879) I.L.R. 2 All. 241; L.R. 6 I.A. 216 that the suit must be taken to have been instituted on the day when the application for leave to sue as a pauper was filed.
7. With reference to the case of Abbasi Begam v. Nanhi Begam (1896) I.L.R. 18 All. 206. I will add that one of the cases on which that case is based, namely Balkaran Rai v. Gobind Nath Tewari (1890) I.L.R. 12 All. 129 has been dissented from by this Court in two cases, Mote Sahu v. Chhatri Das (1892) I.L.R. 19 Cal. 780 and Huri Mohun Chuckerbutti v. Naimuddin Mohamed (1892) I.L.R. 20 Cal. 41 which go to support the view I take.
