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Jwala Prasad, J.—(After giving a brief history of the case the judgment continued.) The order complained of amounts to a dismissal of the claim of the plaintiff''s as having been barred by limitation; in other words, this was a dismissal upon the merits of the claim of the plaintiff, but at that stage the merits of the plaintiff''s claim were not before the Court. The Subordinate Judge could enter into the merits of the case under Rule 4 of Order 33, and for that purpose he could examine the plaintiff who applied for permission to sue as pauper. That stage has, however, passed inasmuch as the Court upon a reading of the plaint was satisfied that that case, as laid in the plaint, disclosed a cause of action, and that the facts, if true, showed that the plaintiff''s claim had merits. Unless the Court was satisfied upon these grounds and had held that the application was not bad under any of the grounds mentioned in Rule 5, it could not register the application and receive evidence as to the pauperism or otherwise of the applicant.
The Court, therefore, acted without jurisdiction in going into the merits of the case upon the plea of limitation. This seems to be the proper construction of the rules laid down in the Code under Order 33 and the trend of authorities upon the subject, the latest authority being Jogendra Narayan Roy v. Durga Charan Guha Thakurta [1919] 46 Cal. 651. This decision has reviewed the case-law on the subject and also the rules contained in Order 33. So far back as 1876 in the case of Parkash Ojha v. Dusruth Ojha [1876] 25 W.R. 74 it was held that where a Subordinate Judge decided the question of limitation, not upon the examination of the petitioner, but upon that of other witnesses summoned for a different purpose, he exceeded his jurisdiction.
In the present case the Court decided the question of limitation not upon the examination of the petitioner but upon the evidence of the clerk of the New College, and certain documents filed on behalf of the defendants, apparently when the evidence called for by the Court was for the purpose of determining the pauperism or otherwise of the applicant.
A contrary view upon the subject in Vijendra Tirtha Swami v. Sudhindra Tirtha Swami [1896] 19 Mad. 197 was considered and dissented from in the aforesaid case of Jogendra Narayan Ray v. Durga Charan Guha Thakurta [1919] 46 Cal. 651. We fully accord with the views of the learned Judges of the Calcutta High Court, and we hold that the decision of the Subordinate Judge is ultra vires.
This fully meets the contention of the learned vakil, on behalf of the opposite party, who urges that the Subordinate Judge had acted within his jurisdiction and that the present application did not raise a question of jurisdiction and that it was, therefore, not fit to be entertained by us in revision. The decision of the Subordinate Judge is wrong, however, upon a firmer ground, and it seems to us that the finding of the Subordinate Judge that the suit was brought more than three years after the plaintiff attained majority does not seem to dispose of the entire claim of the plaintiff. His claim was, among others, for recovery of possession of his share in the immovable properties left by his mother who is said to have died on the 28th April 1912. Such a suit can well be maintained within twelve years of the death of the lady or of the dispossession of the plaintiff if he had already acquired possession at any time after her death. The suit was instituted on the 24th March 1923 well within twelve years of the death of the plaintiff''s mother. Therefore, that portion of the plaintiff''s claim if not the other portion, is undoubtedly not barred by limitation, and the applicant in spite of the finding of the Subordinate Judge was entitled to have his application for permission to sue as pauper legally disposed of.
Accordingly we set aside the order of the Subordinate Judge, and direct that the application be disposed of in accordance with law. The application is allowed with costs.
Adami, J.
I agree.