1994 PLP 953 (CLC)

The plaintiff was tenant of the defendant in respect of a shop, who obtained order of ejectment against the plaintiff and in execution of the said order, the possession was delivered to the defendant on 13‑10‑1984 by breaking the lock in absence of the plaintiff. The articles lying in the shop were entrusted to the defendant. The application filed by the plaintiff for return of the articles was dismissed by the learned Rent Controller by his order dated 25‑11‑1987, leaving it open to the plaintiff to seek remedy against the defendant in competent Court of law.

2. The plaintiff then filed petition to sue forma pauperis for recovery of Rs.44,85,000 as damages in this Court. It was registered as J.M. No.3 of 1988 and dismissed for non‑prosecution on 16‑9‑1990. The restoration application filed was dismissed on 15‑11‑1992. The plaintiff, thereafter, on the cause of action, filed this suit on 23‑12‑1992. According to the office objection, the cause of action is disclosed to have accrued on 25‑11‑1987 and as such the present suit filed on 23‑12‑1992 is barred by limitation. In reply, the learned counsel for the plaintiff has not disputed the fact that the suit under the law to be instituted within three years. The only contention raised was that the time consumed in prosecution of the pauper application is to be excluded under section 12 of the Limitation Act for computing period for institution of the suit under the Limitation Act, 1908. The above submission, on the face of it, being without any merit was overruled by the office. However, the office has drawn attention of this Court to section 14 of the Limitation Act, 1908. Section 14 provides exclusion of the time only when suit instituted could not be entertained by the Court because of defect of jurisdiction or other cause of like nature. . So far the pauper application is concerned, it was presented before this Court which had jurisdiction and, therefore, section 14 is not attracted. In so far as the words "other cause of like nature" are concerned, dismissal of the pauper application or dismissal of the application for restoration thereof, under the above circumstances, cannot be treated as the cause of like nature, i.e. in the nature of defect of jurisdiction.

3. The learned counsel for the plaintiff contended that the Court has the power to extend time under section 149, C.P.C. for payment of court‑fee. He has relied on the case of Esso Eastern Ins. and another v. Ark Navication Company and others (1987 SCMR 2097). The above authority is of no assistance to the learned Advocate for the plaintiff, on the contrary it lays down that in order to enable the Court to pass an order under section 149, C.P.C., allowing time to an applicant whose application is either rejected or refused by the Court, to pay the court‑fee, it must be shown that the Court has not lost seisin of the case at the time the order is sought to be passed for extension of time for payment of the court‑fee.

4. The extension of time is being sought after filing the present suit. It is settled law that such powers can be exercised only when the Court is seized of the proceedings under Order XXXIII of the Code. The plaintiff after dismissal of the pauper application is entitled to file a fresh suit on payment of proper court‑fees, subject to limitation. The suit having been presented after expiry of the limitation prescribed, is barred by law. It is not disputed that the present suit has been filed after expiry of the limitation prescribed for such suits. The office reference is, therefore, accepted as above and the plaint is hereby rejected under Order VII, Rule 11 (d) of C.P.C. H.B.T/Z‑219/K Order accordingly.