P L D 1960 (W (PLP)

The learned Civil Judge found all the issues, except issue No. 2, in favour of the applicants. Under issue No. 2, he found, however, that the application did not comply with section 3 of the Fatal Accidents Act and, therefore, the' application was to be rejected in view of Order XXXHI, rule 5 (a) of the Code of Civil Procedure.

3. It would be convenient at this stage to reproduce the whole of the Fatal Accidents Act:‑ "Whereas no action or suit is now maintainable in any Court against a person who, by his wrongful act, neglect or default, may have caused the death of another person and it is often times right and expedient that the wrong‑doer in such case should be answerable in damages for the injury so caused by him. It is enacted as follows:‑ (1) Whenever the death of a person shall be caused by wrongful act, neglect or default; and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain am action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime. (2) * * * Every such action or suit shall be for, the benefit of the wife, husband, parent and child, if, any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased ; and in every such action the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought; and the amount so recovered; after deducting all costs and expenses, including the costs not recovered from the defendant, shall be divided amongst the before mentioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct: (3) Provided always that not more than one action or suit shall be brought for, and in respect of the same subject‑matter of complaint * * * * Provided that, in any such action or suit, the executor, administrator or representative of the deceased may insert a claim for and recover any pecuniary loss to the estate of the deceased occasioned by such wrongful act, neglect or default, which sum, when recovered, shall be deemed part of the assets of the estate of the deceased. (4) The plaint in any such action or suit shall give a full particular of the person or persons for whom, or on whose behalf, such action or suit shall be brought, and of the nature of the claim in respect of which damages shall be sought to be recovered. (5) The following words and expressions are intended to have the meanings hereby assigned to them respectively, so far as such meanings are not excluded by the context or by the nature of the subject‑matter ; that is to say * * * the word "person" shall apply to bodies politic and corporate ; and the word "parent" shall include father and mother and grandfather and grandmother and the word "child' shall include son and daughter and grandson and grand-daughter and step‑son and step‑daughter." It would be observed that according to section 1, a suit under the Fatal Accidents Act is to be for the benefit of the wife, husband, parent and child of the deceased and according to section 3, the plaint is to give full particulars of the person or persons for whose benefit the suit had to be brought. Admittedly, Hafiz Ghulam Ghaus had two sons whose particulars were not given in the plaint or in any document attached to it. Under Order XXXIII, rule 2, Civil Procedure Code, an application for leave to sue as a pauper is to contain all the particulars that are needed in regard to plaints in suits, and under Order XXXIII, rule 5 (a) if the application does not comply with rule 2, it has to be rejected. The objection was that the particulars of the sons being needed for a plaint must have been stated in the application for leave to sue as a pauper and as they were not stated, the application failed to comply A! Order XXXIII, rule 2, and was liable to be rejected under Order XXXIII, rule 5 (a) of the Civil Procedure Code. The learned Civil Judge held that it was necessary to state the particulars of the sons in the plaint and the failure to do so attracted Order XXXIII, rule 5 (a). It was on this ground that he rejected this application.

4. Before me, there was made a request for an opportunity to amend the application, but at the same time an alternative argument was put forward that the application could be supported as it was and was not liable to be rejected. It was contended that the application could be regarded as an application on behalf of the widow and daughter of Hafiz Ghulam Ghaus only, that there was no bar to a suit being filed on behalf of some of the heirs of the deceased and that in such a case only the particulars of persons, on whose behalf the suit was filed, would be needed. It was urged in this connection that only an heir who actually suffers monetary loss is entitled to file a suit and some of the heirs cannot be debarred from contending that others did not suffer any monetary loss at all. In such a case, those who contend that others did not suffer any loss, would be entitled, to file a suit oh their own behalf. In support of the proposition that only those who suffer monetary loss can file a suit, reliance was placed on some commentaries on the Law of Torts.

5. According to section 1, it is only the wife, husband, parent and child, who are entitled to a share in the damages that are awarded, and according to the same section, the suit must be for the benefit of these persons. At the same time, it is expressly provided Shat only one suit is to be brought, while I concede, therefore, that only the persons who suffered monetary loss can file a suit, I would not concede that a suit can be frame in such a way as to be for the benefit of only some of the persons who are mentioned in section 1 of the Fatal Accidents Act. That only persons who suffered monetary loss are entitled to a share is apparent from section 1 itself, which provides that the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively if a person has suffered no loss then obviously he would not be entitled to any damages. But in spite of this, the suit has to be for the benefit of all, for the law does not envisage a situation that a suit may be filed on behalf of some of persons mentioned in section 1 and ultimately it may be found that even the person who are alleged to be not entitled, have a share in the damages. In such a case, there would necessarily have to be a second suit by the persons who were excluded from the first and were ultima tely found to have a share in the damages and this is no' contemplated by the Fatal Accidents Act. The correct position is that the suit shall have to be on behalf of all the persons who fall in the categories mentioned in section 1 and who may be found entitled and the particulars of all the persons who fall id such categories must be stated even though the position of the persons who actually file the suit may be that some other persons falling in such categories are not entitled to share in the damages for at that stage it would not be known what persons may be found entitled by the Court. The Court will go into the question of apportionment of damages and may find that some are not entitled to any damages. Some may waive their claim in favour of others, but all must be mentioned in the plaint.

6. It is clear, therefore, that the plaint in a suit under the Fatal Accidents Act must give full particulars of all the person who fall within the category mentioned in section 1 and conse quently in accordance with Order XXXIII, rule 2, the application for leave to sue as a pauper should also contain these particulars. It was contended that the intention of Order XXXLII, rule 2, was to refer only to the particulars required for plaints by the Civil Procedure Code and not to particulars which are required by any other law. I do not agree. The intention of rule 2 was that are application for leave to sue as a pauper should state all that is to be stated in a plaint. In case of plaints that are governed by special laws there may be very important particulars provision for which is made by the special law only, and I do not see any reason why rule 2 of Order XXXIII, should not apply to such particulars.

7. The result is that rule 2 shall have to be applied in this case. Rule 5 (a) provides that if rule 2 is not complied with the application "shall be rejected". On behalf of the respondent, it was urged that this rule is mandatory and the learned Civil Judge had no option but to reject the application.

8. The rule no doubt is mandatory. There is an aspect, however, of the matter which was not considered by the learned Civil Judge. While the application, if it remains devoid of necessary particulars, must be rejected, rule 5 of Order XXXIII, does not take away the inherent jurisdiction of a Court to allow an amendment of the proceedings before it. Under section 153, Civil Procedure Code, the Court may, at any time, amend an" defect or error in the proceedings. This is an express provision but it only states what is otherwise the inherent jurisdiction of a Court. When, therefore, a Court is faced with the omission of a particular in an application to sue as a pauper, it is not bounce to reject the application and can permit the applicant to supply the necessary particulars. If it were otherwise, then, in the case ` of an omission by an accident or slip of either the name or the father's name of some other particular, of any of the persons on whose behalf the suit is filed, the Court would be bound to reject the application. Similarly, if in respect of any other particular to be contained in the plaint in accordance with Order VII, rule 1, Civil Procedure Code, a mistake was committed, rule 5 (a) of Order XXXIII will be applicable. It is impossible to argue that such was the intention.

9. If the learned Civil Judge was not bound to reject the application and could order an amendment, can I interfere and ‑set aside the order of rejection. It is contented on behalf of the respondent that there is no illegality or irregularity in the exercise of jurisdiction, nor it can be said that the learned Civil Judge failed to exercise a jurisdiction vested in him and, therefore, I cannot interfere in revision. The question involved is one of principle. If a Court while exercising jurisdiction be not conscious of the full extent of its jurisdiction and had it been so conscious it may have passed an order altogether different from the order which it ought to pass, can it not be said that it acted with material irregularity or there was jurisdiction in it which it failed to exercise. ' I am of the opinion that lack of consciousness on the part of a Court of whole of its jurisdiction in respect of the matter before it is an irregularity on the part of the Court which will be material if the interests of a party are affected. It ix not necessary that the party interested should draw the attention of the Court to the extent of its jurisdiction. Parties need not even be represented by counsel. It is the Court's own duty tote know whole of the law relating to the exercise of its jurisdiction and to apply its mind to all the aspects of the matter before it. In the present case, had the learned Civil Judge considered the question whether he should or should not allow amendment, I do not think he would have refused to allow amendment, because limitation for suit had already expired and by such refusal great injustice may have been caused. It was not necessary that there should have been any request for amendment before the learned Civil Judge. Had he applied his mind to this aspect of the matter he would himself have allowed the opportunity to amend without a formal request. In fact, such a request can be assumed except in a case where a party deliberately takes up a ` position which is inconsistent with such a request. In the present case, when I took at the application for leave, I find that all the heirs were stated to have been affected by the death of the deceased though it was further stated that the applicants, Mst. Fatima Bibi and Mst. Firdaus Begum, were the greatest sufferers. In spite of the alternative argument put forward before me that the application could be supported as on behalf of the two applicants only, it is clear from the application itself that none of the heirs was intended to be excluded from a share in the damages Also such suit under the Fatal Accidents Act should be presumed to be brought for the benefit of all who are entitled to share in the damages unless there be something in the plaint which excludes such an interpretation.

10. I would, therefore, set aside the order of the learned Civil Judge rejecting the application and allow the applicants to supply the particulars required by section 3 of the Fatal Accidents Act.

11. Ordinarily I would not have interfered with an order rejecting the application for leave to sue as a pauper on the ground of want of full particulars because a fresh application can also be filed, but in the present case the limitation for filing a suit had expired and if an amendment is not permitted the heirs of the deceased would be entirely without a remedy.

12. Learned counsel for the respondent sought to support the order of the learned Civil Judge on the ground that the application did not disclose any cause of action. He contended, in the first place, that the suit was for damages against the state on account of the neglect of its servants and that such a suit did not lie against the State at all as it did not lie against the Crown. His second contention was that, in any case, the suit would lie not against the Central Government but against the Provincial Government which had not been made a party.

13. The first contention was not raised before the learned Civil Judge during arguments and there is no discussion on this point in his judgment. Before me too there has been no proper argument, for learned counsel for the respondent simply referred to a judgment wherein it was said that the Crown was riot liable for torts of its servants and learned counsel for the petitioner was not prepared on the point at all. The authority cited by the learned counsel for the respondent is not very relevant in view of section 65 of the Government of India Act, 1858, which provided that the remedies which were available against the East India Company would available against the Secretary of State also. But I do not think I should decide a question of such importance without proper arguments from both sides. Ordin arily I, would have called upon counsel to argue the case before me again, but on account of peculiar circumstances which it is not necessary to specify this course is not practicable and I have to leave the point for determination by the trial Court. The second contention is connected with and depended upon the finding as to the first contention and, therefore, that point too, though it has already once been determined by the trial Court, is to be left to the trial Court. This revision petition is accepted and the case in remanded to the trial Court. The petitioner is allowed three weeks within which he can supply the required particulars to the trial Court. There is no order as to costs. Parties to appear before the trial Court on 28th July 1960. R. M. A. Revision accepted.