JUDGMENT V.R. Nevaskar, J. Only question involved in this appeal is, whether when a Plaintiff-applicant initially sues in forma pauperis and the Defendant joins issue on the questions of his pauperism as well as upon the application not having been made in good faith and the applicant during the pendency of pauper proceedings pays the court-fee on a date when the claim on the basis of the cause of action sued upon had become barred, the issue of limitation is open any longer or the suit could be held to have been properly filed on the date when the application for permission to sue in forma pauperis was first presented. The trial Court before whom the question of limitation of the suit was raised held that having regard to the circumstances in which the Plaintiff-applicant paid the court-fees, there was want of good faith on his part. He consequently found the issue of limitation against the Plaintiff and dismissed, the suit as barred by time. The learned District Judge on appeal set aside that decision, as he came to the contrary conclusion on the issue of limitation, and remanded the case under Order 41, Rule 23 for further trial on other issues left undetermined. The Defendant now has preferred this appeal against the said order of remand. The Learned Counsel for the Appellant raised two contentions in the alternative. Firstly it is contended that having regard to the circumstances as they appear on record the issue of limitation ought to have been found against the Plaintiff as those circumstances would clearly reveal want of good faith on the part of the Plaintiff and the suit will be deemed to have been instituted when the Plaintiff actually paid court-fees and not when he filed the application for leave to sue in forma pauperis, Secondly and in the alternative it is contended that at any rate when the Defendant had joined issue with the Plaintiff regarding his having taken the pauper proceedings in good faith, the issue of limitation which under the circumstances was clearly linked with the question of Plaintiff's good faith ought not to have been decided without giving opportunity to parties to adduce evidence on that question. In order to appreciate these contentions it will be necessary to state certain facts having a bearing on the question under consideration. In order to appreciate these contentions it will be necessary to state certain facts having a bearing on the question under consideration. The proceeding which later became a suit was started on 11-9-1939 when the Plaintiff submitted an application for permission to sue in forma pauperis. The claim was for money valued at Rs.4,232. The Defendants on receipt of notice of the application contested the Plaintiff's pauperism. The Court of Jagir Digthan (in the erstwhile Gwalior State) before whom the application was filed thereupon commenced enquiry into the question of Plaintiff-applicant's pauperism. The proceedings dragged on even till the formation of Madhya Bharat when the case came up before the Civil Judge, First Class, Dhar, some time in June 1949. The proceedings lingered even thereafter before the latter Court when on 20-11-1952 the Plaintiff-applicant was examined. In bis statement before the Court he admitted that he was by then in a position to pay the requisite court fee. The case was then fixed for hearing on 9-1-1953. The Defendants it seems scented that the Plaintiff-applicant would pay court-fees. He therefore submitted a petition on the date fixed for hearing i. e. on 9-1-1953 that the Plaintiff-applicant all along had not been a pauper but had been in a position to pay the requisite court-fee throughout and that the proceedings had been mala fide. They therefore requested that they might be permitted to lead evidence to substantiate these facts. The Court thereupon fixed the case for recording defendent's evidence upon Plaintiff's pauperism on 13-2-1953. At the same time in pursuance of another application submitted on behalf of the Plaintiff-applicant, expressing desire not to continue pauper proceedings and to pay the requisite court-fees, the Court at Plaintiff's request gave time to pay requisite court fees, till 12-1-1953, On this date the Defendants again pressed their objection by means of a second application as was done by them on the 9th and the case was fixed for 13-1-1953 for the hearing of this latter application. On that day the Plaintiff paid the requisite court-fee which the trial Court accepted and passed an order directing registration of the proceeding as a suit. Thereafter the Defendants were required to submit their written statement. They did so and inter alia contended that the suit was barred by time. On that day the Plaintiff paid the requisite court-fee which the trial Court accepted and passed an order directing registration of the proceeding as a suit. Thereafter the Defendants were required to submit their written statement. They did so and inter alia contended that the suit was barred by time. This plea was incorporated in an issue No. 1 (a) which is as follows:- Whether the Plaintiff's suit is within time on excluding the period during which he had been prosecuting the pauper proceeding. The trial Court heard arguments upon this point and taking into account the course of proceedings and the statement of the Plaintiff dated 20-11-1952 and his subsequent conduct in not paying court-fees till 13-1-1953 after the Defendants had challenged his bona fides he found the issue of limitation against the Plaintiff. The learned trial Judge referred to and relied upon the head-note of the decision of the Nagpur High Court reported in Seth Ghasiram v. Mt. Acharaj Kuar, 1936 NLJ 68 : AIR 1937 Nag. 36. As a result of this finding he dismissed the Plaintiff's suit. On appeal the learned District Judge proceeded to consider the question of mala fides of the Plaintiff on the basis of materials as they stood on record without bearing in mind the fact that under the circumstances of the case the question regarding mala fides of the Plaintiff was one of fact and the question could not have been decided without affording opportunity to the parties. He observed:- Though the Learned Counsel of the Respondents vehemently urged that the pauper proceedings were mala fide but they were unable to show any conduct on the part of the Plaintiff except the statement dated 20-11-1952. And further- The judgment of the lower Court is pertimently silent about the ability of Plaintiff to pay the court-fee between 1949 to 1952. He thereupon after referring to the period from 1940 to 1949 as the period of inaction on the part of Digtban Court and criticizing the view of the trial Court in over emphasizing the statement of the Plaintiff dated 20-11-1952, held that there were no materials on record to draw an inference as to mala fides of the Plaintiff. He then proceeded to consider the case in the alternative on the assumption that the Plaintiff had acted mala fide throughout although according to his view that question was no longer relevant. He then proceeded to consider the case in the alternative on the assumption that the Plaintiff had acted mala fide throughout although according to his view that question was no longer relevant. He held that the Court even while rejecting Plaintiff's pauper application on merits had ample jurisdiction to grant time to the Plaintiff to pay requisite court-fee in view of the provisions of Section 149 of the Code of Civil Procedure Code. He relied upon the Full Bench decision of the Allahabad High Court reported in Devendar Kumar v. Mahanta Raghuraj, AIR 1955 All. 164 and other cases including the Privy Council decision in Stuart Skinner alias Nawab Mirza v. William Orde, ILR 2 All. 241 : 6 IA 126 and Amar Rai v. Dharichhan Rai, AIR 1949 Pat. 465 and found the issue of limitation in Plaintiff's favour and remanded the case. In this appeal the learned Judge's view is seriously assailed. It is contended that on the correct appreciation of the Privy Council decision in Skinner v. Orde, ILR 2 All. 241 : 6 IA 126 and the provisions of Section 149, Code of Civil Procedure as also other cases having bearing on this question if it is found as a fact that the Plaintiff-applicant in a proceeding for leave to sue in forma pauperis had acted mala fide in prosecuting the said proceeding then he could not be allowed to circumvent the law of limitation by this subterfuge and that in spite of the fact that the Court had permitted him to pay the court-fees either during the pendency of the pauper petition or at the time of its rejection acting under Section 149, Code of Civil Procedure still the suit, if it not be within time at the time the court-fee is paid, ought to be held barred by time and the date of the institution of a mala fide pauper proceeding ought not under the circumstances be held to be the date of institution of the suit. It was further contended that if this is the correct position the trial Court ought to have afforded opportunity to the parties to lend evidence on the question of alleged good faith in filing and continuing the pauper proceeding. The case therefore ought to be remanded for consideration of that question also. It was further contended that if this is the correct position the trial Court ought to have afforded opportunity to the parties to lend evidence on the question of alleged good faith in filing and continuing the pauper proceeding. The case therefore ought to be remanded for consideration of that question also. Question which arises for consideration is whether the mala fides of the Plaintiff who had applied for permission to sue in forma pauperis are at all relevant with reference to the question of limitation when the Court during the pendency of the said proceedings permitted the Plaintiff to pay the requisite court-fees awl allowed the proceedings to be converted into a suit. The first important case which deals with this question is the Privy Council case reported in 6 I.A. 126. The facts of that case are that on 20th February 1873 a petition was presented in Delhi Court setting out all the particulars required in a plaint and praying bona fide that the Plaintiff might be allowed to sue in forma pauperis. The Delhi Court on 14-4-1873 ordered the suit to be admitted in forma pauperis but the order was set aside by the Punjab High Court, who directed the return of the plaint to proper Court i. e. a Court in North West Provinces (U. P.). On 19-7-1873 the Meerut Court to which the petition was presented directed the case to be brought on file and numbered. Question was raised whether the finding as to pauperism in Delhi Court could be availed of in the Meerut Court. On consideration of that question Meerut Court held the plaint to be barred by limitation and rejected it. On appeal to the High Court, on 10-7-1874 the High Court remanded the holding that the time spent in the abortive proceedings in the Delhi Court should be deducted. The proceedings were thereupon taken up again and the question of Plaintiff's pauperism was being considered when on the date when the case was fixed for evidence regarding pauperism the Plaintiff paid requisite court-fees alleging that he had succeeded in negotiating a loan for a sum sufficient to deposit the necessary court-fees stamps. This was done after securing permission of the Court. This was done after securing permission of the Court. The Defendant thereupon contended firstly the Plaintiff had fraudulently applied as a pauper when he had property and secondly that the suit should be regarded as having been instituted on the date the court-fees stamps were paid, which was beyond the period of limitation. The Subordinate Judge went into that question and found that there had been no fraud on the part of the Plaintiff in filing a petition as a pauper and it should be taken to be one filed in good faith. It further held that he saw no reason why it should not be deemed to be presented on the day the pauper admittance would have carried. It accordingly directed the plaint to be numbered as a suit, and its being fixed for settlement of issues. By a later order however he changed his mind, fixed fresh issues including one of limitation. The Court held that the suit should be held to have been instituted on the day the court-fee was paid and as such barred by time. It therefore dismissed the suit. On appeal the High Court agreed with this view and dismissed the appeal. On appeal to the Privy Council the question was considered. Their Lordships reversed the decision and held the suit to be in time and remanded the case. In the course of their judgment they observed:- There are no negative words in the Act requiring the rejection of the plaint under circumstances like the present, nor anything in its enactments which would oblige their Lordships to say that this petition, which contains all the requisites which the statute requires for a plaint, should not, when the money has been paid for the fees, be considered as a plaint from the date that it was filed. It is obvious that very great injustice might be done if this were not to be the practice. There could hardly be a stronger instance of the mischief which might arise then what would have happened in this case. Their Lordships of course say nothing about the merits of the case. It is obvious that very great injustice might be done if this were not to be the practice. There could hardly be a stronger instance of the mischief which might arise then what would have happened in this case. Their Lordships of course say nothing about the merits of the case. The claim may be utterly untenable, but on the assumption that the claim is a good one, nothing more unjust to the Plaintiff could have happened than that he should have been deprived, by having done an act which is in itself meritorious, of the benefit which he would have had if he had been found to be a pauper. He was a pauper when his petition was filed. Supposing there had been any fraud found by the Judge, the considerations which would determine the judgment would then have been different. It appears from this decision that their Lordships regarded the presence or absence of good faith as a material circumstance bearing on the question. In Model Mills v. Kurban Hussain, air 1028 Nag. 298 , Findelay J. C. referring to the above mentioned decision of the Privy Council held that in a suit of the nature under consideration, the Plaintiff is not entitled to deduct the period spent in prosecuting the pauper application, if in a particular case that pauper application is held to have been a mala fide or fraudulent one. According to him it was from that point of view that the lower Court should have determined the question of limitation. This decision was followed in Seth Ghasiram v. Ml. Acharaj Kuar, 1938 NLJ Note 68 : AIR 1937 Nag. 36, by Pollock. J. of Nagpur High Court. He observed: - It is certainly not open to a Plaintiff, in my opinion, to put in an application to sue in forma pauperis merely in order to gain time in which to pay the court-fees and then subsequently to pay the court-fees ami claim that the plaint was validly presented on the date on which the application to sue in forma pauperis was presented. If, however, the Plaintiff acted in good faith in first applying for permission to sue in forma pauperis, then the Court has power under Section 14ft, Code of Civil Procedure Code, to allow the Plaintiff to pay the requisite court-fees and in that case the plaint will be deemed to have been properly stamped on the date on which the suit was filed. In support of this view I may refer to Model Mills v. Kurban Hussain (1) and bank of Behar v. Ramchanderji ,AIR l926 Pat. 637. Similar view is taken in Jagannathpuri v. Natkoo, AIR 1929 Nag. 268 and Official Receiver v. Firm Sohanlal, AIR 1940 Lah. 446, 447. No later decision of the Nagpur High Court bearing on this question has been brought to my notice taking a contrary view than that taken in the aforesaid cases. It is however necessary to refer to the decisions relied upon by the lower Court apart from the decision in Skinner v. Orde, 61 A 126 : ILR 2 All. 241. Amar Rai v. Dharichhan Rai, AIR 1949 Pat. 465, referred to by the learned Judge is clearly in line with the aforesaid decisions. Existence of good faith is considered to be a material factor in considering the question of limitation. The decision in Devendar Kumar v. Mahanla Raghuraj, AIR 1955 All 154 , has no application. The question there considered is whether the Court can grant time in exercise of powers under Section 149, Code of Civil Procedure Code, after the pauper application is rejected finally. It held that this cannot be done although during the pendency of such application or at the time of its rejection the Court can grant time acting under Section 149, Code of Civil Procedure to pay court-fees and upon payment of the requisite court-fees it becomes a plaint as having been filed on proper stamps on the date of presentation of the pauper application. The question of good faith or mala fide was not considered in that ease. One more decision needs be noted is that of the Supreme Court in Ganesh Prasad v. Narendra Nath, AIR 1953 80 431. The facts in that case were as follows: Plaintiffs sued for a declaration that they were the next reversioners after the death of the limited owner Sarnamayee. One more decision needs be noted is that of the Supreme Court in Ganesh Prasad v. Narendra Nath, AIR 1953 80 431. The facts in that case were as follows: Plaintiffs sued for a declaration that they were the next reversioners after the death of the limited owner Sarnamayee. The Defendant contended that the last male bolder had left a daughter by another wife who was living on the date of the suit and that she died after the Defendants had filed their written statement and that for that reason they are entitled to be the reversioners. The suit was ultimately decreed. In the judgment although there was direction to deliver certain property in the operative part of the decree framed pursuant to it only a declaratory relief was mentioned. An appeal was preferred by the Defendants, without paying ad valorem stamps. When Registrar objected they modified the memorandum and dropped with the permission of the High Court the relief regarding possession. When the matter came up before the High Court, the question of maintainability of appeal in view of the relief asked for in the Modified form was argued as a preliminary point. The objection prevailed but the High Court at that stage permitted the Appellants to change the relief again and revert to the relief as originally prayed. At that point of time the appeal had become barred by time. The Appellants made a change and paid court-fees accordingly. The High Court allowed the appeal and dismissed the suit. On appeal to Supreme Court the question of limitation of appeal to the High Court was raised on the ground that the court-fee for the memorandum was paid long after the appeal before the High Court had become barred by time. Their Lordships disallowed the contention. They observed:- In the 6rst place, the decree of the Subordinate Judge, as drafted, is only a declaratory decree and contains no order directing delivery of possession. It is true that in the judgment of the Subordinate Judge there are directions about delivery of possession but they do not appear to have been included in the decree as drawn up. Secondly, the power of the High Court to allow an amendment under Section 149, Code of Civil Procedure is clearly one under which the plea of the bar of limitation may be ignored. There are decisions of very high authority taking that view. Secondly, the power of the High Court to allow an amendment under Section 149, Code of Civil Procedure is clearly one under which the plea of the bar of limitation may be ignored. There are decisions of very high authority taking that view. The contention therefore that by allowing the amendment the High Court took away the present Appellants' valuable right to plead the bar of limitation cannot be accepted. It was a matter of discretion for the High Court and the materials put before us indicate no reason to hold that the discretion was exercised so as to violate any recognised principles of law or that by granting leave to amend any gross injustice has been done. As pointed out by the High Court, the payment of court-fees is a matter primarily between the Government and the present Respondents and that was the whole fight in respect of this contention. In our opinion therefore the preliminary objection fails. It appears clear from the facts of the case and the observations of their Lordships in that case, that there was no absence of good faith. Their Lordships seem to have accepted that the failure to pay court-fees was in good faith. Their Lordships ultimately held that court-fee paid as for declaratory decree simpliciter was proper. Moreover their Lordships distinctly say that the materials put before them did not disclose any reason to hold that the discretion had been exercised by the High Court in permitting payment of court-fees later was a violation of any recognised principle. The discretion exercised is thus not final but is capable of being controlled by the appellate Court where the question of principle is involved. Now the recognised principle is that where the initial non-payment is not in good faith or is mala fide then discretion should not be allowed in favour of the defaulting party. Thus the question of presence or absence of good faith at the time the application for pauperism was made is a material consideration at the trial in considering the question of limitation. It thus follows that both the Courts below have erred. The trial Court gave a finding on issue No. 1 against the Plaintiff without giving opportunity to the parties to give evidence pertaining to Plaintiff's good faith or absence of it in paying court-fees late. It thus follows that both the Courts below have erred. The trial Court gave a finding on issue No. 1 against the Plaintiff without giving opportunity to the parties to give evidence pertaining to Plaintiff's good faith or absence of it in paying court-fees late. The appellate Court gave it in Plaintiff's favour, first holding presence of good faith without any opportunity to the parties of leading evidence on that point and at the same time saying that the question of good faith was irrelevant. In my opinion both have erred to a greater or less extent. The appeal is therefore allowed and the order of remand passed by the tower Court is modified and the case is remanded to the trial Court with a direction that the parties will be permitted to lead evidence on the question whether the proceeding of pauperism had been filed in good faith or otherwise. They will also lead evidence on the other issues as well. The case will then be decided finally on all the issues. The Appellant is entitled to the costs of this Court as well as of the Court below. Appeal allowed