1994 PLP 1300 (CLC)

Date of hearing: 2nd November, 1993. Briefly stated the facts giving rise to this revision petition are that the respondent filed a suit for recovery of Rs.20,00,000 against the petitioners on 14‑1‑1992 in the Court of Mr. Mazhar Hussain Chaudhry, Civil Judge, Faisalabad in forma paupeiis. Instead of taking proceedings in compliance with the provisions of Order 33, rules 6 and 7, the Court straightaway issued summons to the defendants/petitioners in the ordinary course. The petitioner entered appearance and filed application under Order VII, Rule 11 of the C.P.C. for rejecting the plaint as it did not disclose any cause of action and that no notice was given to him under Order 33, Rule 6 of the C.P.C. The said application was not decided. The Court directed the petitioner to file a written statement which was accordingly filed. A number of preliminary objections were raised, whereupon the Court framed the following issues: (i) Whether the plaintiff has no cause of action? . (ii) Whether the proper court‑fee is not affixed on the plaint and as such is liable to be rejected? (iii) Whether this Court has no jurisdiction to entertain the suit? " (iv) Whether the plaintiff is entitled to recover Rs.2,00,000 as damages from the defendant on the basis of malicious prosecution? (v) Relief. Issues Nos.2 and 3 were treated as preliminary issues and decided vide order dated 6‑4‑1993.

2. The petitioners learned counsel submits that the impugned order is contradictory. On the one hand it was dearly observed therein that the proceedings relating to pauperism were yet to be conducted and on the other hand the Court held that the suit was proceedable and fixed 10th June, 1993 as date for recording evidence of the plaintiff on the remaining issues. The learned counsel submits that the Court acted with material irregularity in passing the order for recording evidence without first deciding the matter relating to pauperism of the respondent/plaintiff. In this connection he places reliance on the case of Secretary, Ministry of Commerce and another v. Ch. Sharif Ahmad (1988 CLC 1210 (Lahore)) and Muhammad Hussain and 9 others v. Mst.. Fatima and 2 others (1991 CLC 1826 (Lahore). On the other hand the respondent's learned counsel candidly stated that the question of pauperism had to be decided first and thereafter rest of the proceedings could follow.

3. In view of the above submissions of the learned counsel for the parties, it is clear that the trial Court was bound to decide the issue relating to the respondent's pauperism first in accordance with the provisions of Order 33 of the C.P.C. If the plaint does not merit rejection under the provisions of Order 33, rule 5 of the C.P.C. then a notice has to be given to the defendants/petitioners as well as the Government Pleader by virtue of the provisions of rule 6 of the C.P.C. For purposes of the said rule the Deputy Commissioner of the District is the Government Pleader as declared vide Punjab Government Notification 1‑C, dated 1st January, 1909 (see the High Court Rules and Orders, Volume, I, Chapter 1‑M, Part (e) `Suit by Paupers', rule 4, page 65 edition 1958). Therefore, this revision petition is accepted, the impugned order is set aside with a direction to the trial Court to decide the matter relating to pauperism of the respondent/plaintiff first in accordance with the law. In case the respondent is found to be a pauper and allowed by the trial Court to sue in forma pauperis then the suit be decided on merits in accordance with the law. The parties are left to bear their own costs. H.B.T/L‑59/L Petition accepted.