P L D 1967 Lahore 854 (PLP)

Briefly stated the facts leading up to these three connected revision petitions (being Civil Revisions Nos. 156, 157 and 158 of 1961), which are being disposed of by this judgment, are that three separate suits were brought by Muhammad Amin and Muhammad Husain respondents in forma pauperis for recovery of Rs. 3,119‑15‑9 in each case on the basis of a bond against three different persons. The report of the Collector was called for the 2nd of April 1959, when a report was received from the Patwari, forwarded by the Collector, with regard to the financial position of Muhammad Husain plaintiff: Subsequently another report of the Patwari was received with regard to the fiscal position of Muhammad Amin, in which it was said that the report made earlier with respect to Muhammad Husain did not mention that the articles mentioned in the list included the assets of his relatives as well. The trial Court framed an issue with regard to pauperism of the plaintiffs on the 20th of October 1959. Both the plaintiffs appeared as their own witnesses on the 19th of November 1959 and thereafter the case was adjourned from time to time. Ultimately, on the 16th of January 1960, the plaintiffs made the statement that an old time‑barred debt owing to them from one Mehr Din had been realised by them and that they had paid a part of the court‑fee in the three suits. They prayed for time for payment of the rest of the amount. Ultimately the entire court‑fee was paid on the 20th of February 1960 when a preliminary objection was raised by the defendants‑petitioners that fraud having been played on the Court merely to gain time, it was a case of absence of bona fides and, therefore, the suits should be treated to have been filed on the day the total amount of court‑fee had been paid and not on the date when applications in forma pauperis had been made. Two issues in this regard were framed on the 13th of April 1960 and the third issue was added on the 12th of January 1961, which read as under and fully reflect the pleas taken by either of the parties;-- (1) Whether the petition of pauperism was mala fide and consequently the suit should be deemed to have been instituted on the date the court‑fee was paid, i.e., on 20‑2‑1960, and whether on this account, the suit appears from the statements in the plaint to be barred by the law of limitation ? O. D. (2) Whether the plaintiffs should be directed to file statement of further and better particulars? If so, in which respects and on what terms? O. D. (3) Whether Firm Fazal Ahmad Allah Rakha is a necessary party ? The plaintiffs‑respondents have examined seven witnesses including Mehr Din from whom they are stated to have realized the time‑barred debt. The learned trial Court after considering the evidence has come to the conclusion that it is not a case of lack of bona fides. The plaintiffs‑respondents have, therefore, been granted the benefit of section 149 of the Code of Civil Procedure and their suits have been allowed to proceed as within time having been considered to have been filed on the date the applications in forma pauperis had been deposited by them in the Court.

2. Learned counsel for the petitioners argues that a case of mala fide stands established on the record and the order of the trial Court is incorrect in that regard. He argues that the first report, in which two oxen, one buffalo and one young‑buffalo had been mentioned, has been ignored by the trial Court. He further maintains that it is in evidence that one of respondents had a horse with a tonga and since the property in the horse and the tonga had passed to the plaintiffs‑respondents, there was no occasion to hold that the plaintiffs were actually not in a position to pay the court‑fee and they had not in any manner played a ruse on the Court in not paying the court‑fee in time. He has referred to Biswa Nath Das y Khejerali Molla (A 1 R 1939 Cal. 394), Ram Het Gir v. Banwari Lal (A I R 1938 Lah. 41), Model Mills v. Kurban Husain (A I R 1928 Nag. 296) and Durga Prasad v. Srinivasa (A I R 1930 Pat. 368) and says that because the plaintiffs have not paid court‑fee in the first instance and deliberately tried to defraud the public exchequer and the entire story of realization of debt from .n Mehr Din is a concoction, it was a fit case for interference in exercise of section 115 of the Code of Civil Procedure in view of the concluding sentence of the following dictum in Skinner v. Orde (61 A126). "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."

3. The cases relied on by learned counsel for the petitioners, are rather unavailable to him for the reason that in revisional jurisdiction findings of fact, howsoever erroneous, are not to be gone into N. S. Venkatagiri Ayyangar v. H. R. E. Board, Madras (A I R 1949 P C 156) refers. Once we come to the conclusion that there was no fraud or lack of bona fides, the ratio decidendi of Skinner v. Orde expressed in the first part of the extract reproduced above fully applies. In the circumstances I am not persuaded to, interfere in revisional jurisdiction. The revision petitions fail and are dismissed. However, there will be no order as to costs. A. H. ?????????????????????????????????????????????????????????????????????????????????????????????????? ????Petitions dismissed.