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Allahabad High Court
Narain Singh And Anr. vs Jaswant Singh on 9 May, 1899
Equivalent citations: (1899) ILR 21 All 359
Author: A Strachey
Bench: A Strachey, Banerji


JUDGMENT

Arthur Strachey, C.J.

1. We think that the learned Judge was wrong in holding that Section 43 of the Code of Civil Procedure barred the present suit. Section 43 only applies where there has been a suit, and the plaintiff omits in that suit to make a particular claim which he is entitled to make in respect of the cause of action. Now prior to this suit the plaintiff did not bring any suit having reference to the cause of action alleged in the present suit. What he did was to make an application for leave to sue in forma pauperis, but that application was rejected. Section 410 of the Code clearly shows that it is only when such an application is granted that it becomes the plaint in a suit, and therefore if the application is rejected, it never becomes a suit, and Section 43, which is limited to suits, cannot apply so as to bar any subsequent suit. There is nothing in this view inconsistent with Section 413, All that Section 413 shows is that an order of refusal to allow the applicant to sue as a pauper bars any subsequent application for leave so as to sue in respect of the same right. It does not bar any suit brought in the ordinary way. The words “but the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such right,” do not imply that the applicant is not at liberty to institute a suit in the ordinary manner in respect of any other right than that to which the application related. In the present case the application for leave to sue as a pauper was merely in respect of the personal remedy of contribution, and there was no claim to enforce the charge created by Section 95 of the Transfer of Property Act. The present suit is a suit to enforce that charge, and there is nothing in Section 413 which could be held to bar it. That is all that is necessary to say about Section 43 of the Code. As to the question of limitation the learned Judge is right in holding that Article 132 is applicable. As we disagree with the learned Judge’s view of the effect of Section 43 on which his decree is based, we must allow this appeal. We set aside the decrees of both the lower Courts and remand the suit to the Court of First Instance for disposal on the merits. Costs of the appeal in the Lower Appellate Court and in this Court will be paid by the respondent. The costs of the first Court will abide the event.


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