Report No. 89
Section 13: Exclusion of Time where Leave to Sue or Appeal as Pauper is applied for
13.1. Section 13.- Section 13 deals with a very special case; provision is made for excluding time taken in prosecuting an application for leave to sue or appeal as a "pauper", where ultimately such leave is refused, and the "pauper", has then to file a suit or appeal as an ordinary person. The section was introduced in 1963. It was not contained in the original Bill and was inserted1 by the Joint Committee on the Bill for the following reason.-
"The Committee feel that in a case where an application for leave to sue or appeal as a pauper has been made and rejected, the time taken in prosecuting in good faith such application should be excluded in computing the period of limitation prescribed."
1. Joint Committee Report on The Limitation Bill, 20 November, 1962.
13.2. Analysis.- The section really consists of two parts, and its content may be re-stated in a simplified form thus:
(1) Where an application for leave to sue or appeal as a pauper has been made and rejected, then, in computing the period of limitation prescribed for any suit or appeal in such case, the time during which the applicant has been prosecuting in good faith his application for such leave shall be excluded.
(2) The Court may, on payment of the court fee prescribed for such suit or appeal, treat the suit or appeal as having the same force and effect as if the court fee had been paid in the first instance.
13.3. Procedural provisions as to indigent persons.- The purport and significance of section 13 will be better understood if one bears in mind the scheme of the provisions1 in the Code of Civil Procedure, 1908 as to suits and appeals by "indigent persons" (who were, before the amendment of the Code in 1976, described as "paupers"). A person who does not have sufficient means to pay the court fee prescribed for the plaint can seek leave of the court to sue as an indigent person.
To determine whether such leave should be granted, the court is required to hold a preliminary inquiry, at the end of which either the leave prayed for is granted or refused. If the leave is granted, then the application is converted into a plai.-the Code of Civil Procedure, 1908 so provides in express terms. In harmony with this procedural provision, the Limitation Act2 enacts that for the purposes of the Limitation Ac.-
"(a) a suit is instituted
(ii) in the case of a pauper when his application for leave to sue as a pauper is made."
What happens, however, where the application is refused and the applicant has to file a suit in the ordinary manner after payment of court fees? The Indian Limitation Act, 1908 contained no provision on the subject.
As regards the Code of Civil Procedure, section 149 of the Code empowers the Court to give time to a person for the payment of court fees generally. However, this section does not provide for the starting point of Limitation. Moreover, there is a conflict of decisions on the precise effect of an order under the section.3 So there was no "relation" back of the suit filed within the extended time.4
The provision in section 13 of the present Limitation Act now gives a definite answer; the time taken in the (infructuous) application is excluded when computing the period of limitation prescribed for the suit filed (on payment of court fees).
As regards appeals, the Courts, under the earlier Limitation Act, generally used to allow the benefit of the relaxing power under section 5 of the Limitation Act, treating the fact that the infructuous proceedings had been prosecuted in good faith as a "sufficient cause" within the meaning of section 5 for condoning the delay. Under the present section 13, resort to section 5 is no longer required, since section 13 makes an appropriate for appeals also.
1. Orders 33 and 44, Code Civil Procedure, 1908.
2. Section 3(2)(d)(ii), Limitation Act, 1963.
3. Mulla Code of Civil Procedure, Abridged Edn., (1982), p. 323.
4. Naraini v. Makhan, 1885 ILR 17 All 526.
13.4. Verbal change recommended.- While no changes of substance are needed in the section, it is necessary to point out that the words "as a pauper" occurring in the section are out of tune with the phraseology of the Code of Civil Procedure, 1908 as amended in 1976 on the recommendation1 of the Law Commission. The current phraseology is "indigent person" in the amended Code.
Accordingly, we recommend that in section 13, for the words "as a pauper", the words "as an indigent person" should be substituted.
1. Law Commission of India, 54th Report (Code of Civil Procedure, 1908), Chapters 33 and 44.