P L D 1968 Lahore 509 (PLP)

Nemo for Respondent No.

6. Dates of hearing: 23th November and 5th December 1966. An application for permission to sue in forma pauperis filed by the petitioner under Order XXXIII, rule 1, C. P. C. read with the provisions of the Fatal Accidents Act, claiming a sum of Rs. 48,000.00 as against the respondent, bad been rejected by the trial Court under the provisions of Order XXXIII, rule 5 (d), C. P. C. on the ground that it does not pritra facie disclose a cause of action. The petitioner is the unfortunate father of Amjad Ali who is stated to have succumbed to his injuries sustained in the accident with respondent No. 1's passenger bus on the 18th of February 1958. He stated in the application that the petitioner's deceased son was employed in the Public Works Department, that he was unmarried and has not left behind any widow or children, and that he was earning Rs. 95.00 per mensem and that having been born in April 1939, he could reasonably be expected to have earned about Rs. 50,000 00, and that notice was served by him for the recovery of damages on the respondents who were jointly and severally responsible to pay compensation to the petitioner, and that the Courts at Lahore bad jurisdiction to hear this matter. This application was resisted and ultimately on the plea taken as to absence of disclosure of cause of action it has been rejected. It may further be stated at this stage that the main petition having been dismissed an application for amendment of the original petition so as to include the date of accrual of cause of action, was ordered to be consigned to the Record Room.

2. In this revision petition, learned counsel for the petitioner has greatly relied on the provisions of sections 1 and 3 of the Fatal Accidents Act (XIII of 1855), which may be reproduced for proper appreciation of the argument advanced: "

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 an 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. 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. 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." Learned counsel maintains, that the words "cause of action" are not synonymous with the words "nature of the claim" mentioned in section 3 of the Fatal Accidents Act. He contends that the cause of action accrues to the executor, administrator or representative of the person deceased by the very death of that person, caused by wrongful act, neglect or default by the opposite party. Therefore, the argument that the petition prima facie does not disclose any cause of action and the dismissal of the petition on that ground under Order XXXIII, rule 5(d) is unwarranted. In this regard he bas referred to Read v. Great Eastern Railway ((1868) L R 3 Q B D 555), and contends that the basis of the cause of action being the death, no new cause of action arose to the petitioner when he came to the Court. All that he has to mention in the plaint is the full particulars of the person or persons for whom or on h hose behalf such action or suit is being brought and of the nature of the claim in respect of which damages are being sought to be recovered. He argues that all these particulars as envisaged in section 3 are available in the instant case and the view of law taken by the learned trial Judge is infirm on the legal plane. He further argues that the right to bring an action and right to succeed are two distinct matters. The right to sue may be equated with the cause of action but the right to succeed is not the cause of action. He maintains that the latter right depends on the evidence placed and proved on the record to claim a judgment in favour of the plaintiff after the accrual of the cause of action. He also argued that if the petition is found, not to be a carefully drafted petition, the proper procedure for the Court was to ask for a further and better statement of the case and not to throw out the application straightway. He relied on Mst. Ram Kailash Kunwari v. Ishwari Saran (A I R 1936 All. 475). He has tried to distinguish before me the various decisions: Rivers Steam Navigation Co. Ltd. v. Hira Lal De and others (A I R 1934 Cal. 712), Rivers Steam Navigation Co., Ltd. v. Khanta Kumari Banik and others (A I R 1934 Cal. 632,) and Ramdas Sahu v. Ram Chandra Sahu and others (AIR 1957 Pat. 562) and says that those cases were of non‑impleading of the beneficiaries and, therefore, cannot be pressed into service in the present case. His contention is that at best the objection of the opposite side is that the petitioner has not been able to specifically state his locus standi in the petition as he has not mentioned as to how much financial aid was being rendered by the deceased to him and how much financial loss in that regard has been sustained, for which he is to be compensated and, therefore, particulars of loss suffered by the petitioner having not been specified resulting in non disclosure of cause of action cannot be spelt out of the petition itself. On the other hand, learned counsel for the respondent has referred to Mst. Fatima Bibi and another v. Pakistan (P L D 1960 Lah. 1031) and Muhammad Ibrahim Khan and another v. Latif and others (P L D 1957 Kar. 352) and contended that the loss incurred by the petitioner because of death having not been pleaded and specifically stated, the petition has been rightly rejected under Order XXXIII, rule 5 (d) of the Code of Civil Procedure. The question that falls for determination is with regard to interpretation of the words "nature of the claim". Unfortunately, the word "claim" is not defined in the Fatal Accidents Act although it has been used in certain other enactments which are not pari materia. There is a discussion of the term in West Wake Price & Co. v. Ching ((1956) 3 A E L R, 821 at pp. 829 and 831) and I would borrow the terse observations made by the learned Judges while considering the word "claim" in legal sense and as used in common parlance: "I think that the primary meaning of the word 'claim whether used in a popular sense or in a strict legal sense‑is such as to attach it to the object that is claimed; and is not the same thing as the cause of action‑by which the claim may be supported or as the grounds on which it may be based. In the OXFORD DICTIONARY 'claim' is defined as first, ' demand for something as due; and assertion of a right to something'; secondly, 'Right of claiming; right or tile (to something or to have. be, or do something; also, upon the person, etc., that the thing is claimed from): All the examples given under these two heads are examples of claims made to an object or on a person. Under the verb 'to claim' it is observed that it is 'often loosely used, especially in the United States, for: contend, maintain, assert.' I do not doubt that the word is frequently used in this looser meaning of 'contention', or that it is often used by lawyers as if it meant the same thing as a cause of action. It follows, I think, that if there is only one object claimed by one person, then there is only one claim, however, many may be the grounds or the causes of action which can be raised in support of it; likewise, where several claims are each dependent on the same cause of action (as, for example, where one cause of action leads to alternative claims for an injunction, damages or an account or other different forms of relief), there remains only one cause of action, however, many claims it may give rise to." To my mind, keeping the above observations in view, the action under the Fatal Accidents Act can be brought for the benefit of the beneficiaries specified in section 1, namely, wife, husband, parent and child of the deceased and has to be brought by and in the name of the executor, administrator or representative of the person deceased and consequently in such an action or suit, the executor, administrator or representatives of the deceased may include 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 to be part of the assets of the estate of the deceased. Now in order to specify for whom and on whose behalf such action was being brought, section 3 lays down that the plaintiff in such action should give a full particular of the person or persons for whom and on whose behalf such action is brought. In other words, the first part of section 3 makes it obligatory to specify the beneficiaries for whom or on whose behalf the action was being brought because only one action or suit can be brought for, and in respect of the same. subject‑matter of complaint, as provided by section 2 of the Act. The second part which requires that full particulars of the nature of the claim in respect of which damages shall be sought to be recovered should be stated means that the person bringing the action or suit shall state whether he or she is bringing the action for the beneficiaries named in section 1 or for the estate of the deceased as provided for in section 2 of the Act, but the words "nature of the claim" are not synonymous with the words "cause of action" and if in the instant case the petitioner has not specifically stated that he as parent of the deceased was being maintained by the deceased and he had, therefore, sustained loss and was entitled to compensation on that score, the petition may not have been carefully drafted but certainly it cannot be dubbed to have not disclosed the, cause of action. If the Court considered that without that other elucidation of the nature of the claim the Court could not adjudicate in the matter properly and adequately, It should have called upon the petitioner to amend the petition and place further and better written pleadings. I, therefore, hold that the order of rejection of petition under rule 5 (d) of Order XXXIII, C. P. C. is a case of misinterpretation of the law on the subject and by this misconstruction the Court has refused to exercise jurisdiction in the matter and the order falls within the purview of section 115 (b) of the Code of Civil Procedure, Before me the petitioner has filed an application for amendment of the petition but since I have set aside the order and the case is being sent back, I am not called upon to deal with the said application.

8. The revision petition succeeds and is allowed. The parties are, however, left to bear their own costs. A.H. Petition allowed,