N.N.Mithal, J. - (1.) THIS is defendants' second appeal against the concurrent findings recorded by the Courts below in a suit for cancellation of the sale -deed. According to the plaintiff the defendants who are his own sister and her husband, taking advantage of his physical infirmities and active confidence reposed in them, played fraud upon him and obtained a sale -deed of his properties. The defence was denial of the allegations and also a plea of limitation had been raised. It may be recalled that initially the suit was filed in forma pauperis, but the application having been refused the amendment in valuation was made and the necessary Court fee paid as directed by the trial Court, whereafter the writ proceeded in the usual course.
(2.) SRI G.N. Verma, learned counsel for the defendant -appellant, amongst several other pleas, urged that the suit was barred by limitation as the impugned sale -deed was dated 6 -5 -1965 and the plaint along with an application for permission to sue, as a pauper was moved on 1 -4 -1968. This application was rejected and time upto 23 -3 -1969 was granted to pay the Court fee which the plaintiff did. The plaint was registered on 26 -3 -1969. It is urged that since the plaintiff had not acted in good faith, the suit should be deemed to have been filed on 26 -3 -1969 and was, therefore, barred by time. According to him, benefit of Section 13 of the Limitation Act could be taken by the plaintiff only on proof of the fact that the plaintiff had been prosecuting the application for leave to sue as a pauper in good faith. Section 2(h) of the Act defines Good faith' and according to it, nothing shall be deemed to be done in good faith which is not done with due care and attention. Section 3 of the Limitation Act is also relevant in this connection and its relevant portion may be extracted as under: - - Bar of Limitation. - -(1) Subject to the provisions contained in Sections 4 to 24 (inclusive) every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. (2) for the purposes of this Act - - (a) a suit is instituted - - (i) ......... (ii) in the case of a pauper, when his application for leave to sue as a pauper is made. 3. Thus in the case of a suit filed as a pauper, the suit shall be deemed to have been filed on the date when the application for leave to sue as a pauper is made which was done in this case on 1 -4 -1969 i.e. well within limitation. This, however, would be subject to the provisions contained in Sections 4 to 24. Since Section 13 requires existence of good faith while prosecuting the application for leave to sue as a pauper, it is urged that unless good faith is shown, the plaintiff cannot take the benefit of Section 13 read with Section 3 despite the fact that the plea of limitation may not have been taken by the defendant. It is urged that in this case, the plea of limitation had been taken and the suit as, therefore, clearly barred.
(3.) IT is true that the plaintiff must establish his good faith if he desires to take the benefit of Section 13 of the Limitation Act for the period spent by him when his application for leave to sue as a pauper was pending, yet mere held plea in the written statement about limitation can not suffice. It was necessary for the defendant to have specifically pleaded that the plaintiff had not acted in food faith and, therefore, he was not entitled to claim the benefit of Section 13. It however, appears in this case that the Court considered the application for leave to sue as pauper and while rejecting it had given certain time for paying the Court fee which the plaintiff did. The Court has no stated any where that the plaintiff had not acted in good faith. Even from the judgment of the trial Court it does not appear that a plea of this kind had been ever raised before it. In the grounds of appeal before the lower appellate Court as well as before this Court, this ground has not been mentioned. It is rather too late for the defendant to urge this question now. There is a clear finding by the trial Court that the suit was within time as the plaint had been filed on 1 -4 -1968 well within time and mere dismissal of the application to sue as a pauper, would not go to establish that the plaintiff had not acted in good faith.;