P L D 1977 Karachi 772 (PLP)

"Whether the deceased Banda Ali left any property or assets ?" The learned Civil Judge, while disposing of this issue came to a finding in negative and observed as under :‑ "The plaintiff was legally required to prove the existence of the property to which he had any legal character or any right as to any property. He has failed to produce any evidence in this regard, whereas the defendants have produced documentary evidence as Exhs. 6, 11, 13, 14, 15, 16, 17, 18, 19 and 20 in support of their above contention and have been admitted by the plaintiff:? He again observed "I have already held in Issue No 1 that the plaintiff has failed to prove that Bane Ali had left any properties or assets" The learned VI Additional District Judge affirmed this finding in his judgment dated 9‑10‑1974 and observed as under "In order to see whether the deceased had left any properties and assets I have examined the entire evidence of the parties produced in the lower Court. The appellant has examined himself and has produced no documentary or oral evidence worth the name to prove that the decease) left any properties. The respondents, on the other hand, produced copious documentary evidence of reliable character to prove that the deceased left no properties in his name at the time of his death." Mr. Justice I. Mahmud in dismissing the revision application by his order dated 19‑1‑1976 also affirmed the findings of the two Courts below that the plaintiff (applicant) has failed to discharge the burden of proving the existence of property belonging to the deceased. In his memo of appeal under rule 15 of the Sind Chief Court Rules (O. S.) applicant urged the following grounds : (1) That the impugned order of the learned Additional Registrar is without jurisdiction as under rule 14(40) Sind Chief Court Rules (O S) the Additional Registrar was not competent to dispose of an application under Order VII, rule 11, C. P. C. as such application had to be decided by the Court. (2) That the present suit is not bit by the rule of res judicata for the reason that the Court which tried the previous suit, namely, the Civil Judge, third Class, was not competent to try the present suit and consequently the bar contained in section 11 is not attracted in the present case." As to the first ground a perusal of the relevant Rule of the Sind Chief Court Rules on the original side, namely, rule 14, shows that it enumerates applications under various provisions of the civil Procedure Code and other enactments whether contested or uncontested which the Registrar (O. S.) is competent to dispose of. Clause (40) relates to applications for leave to sue in forma pauperts and investigation as to the pauperism of petitioner for leave to sue or to appeal as a pauper. It was contended by Mr. J. H. Rahimtoola learned counsel appearing for the respondents that the Additional Registrar, was, therefore, competent to dispose of all questions arising in connection with the disposal of the pauper application filed by the applicant. Under rule 5, Order XXXIII, C. P. C. the Court is enjoined to reject an application for permission to sue as a pauper Inter alia where the applicant's allegations do not show a cause of action. The counsel, therefore, argued that if a claim is barred by limitation or res judicata, the applicant would not have a cause of action and consequently his application would be liable to the rejected under rule

5. Sub‑rule (2) of rote 7 of Order XXXIII, also empowers the Court after hearing the evidence adduced by the parties and their arguments to entertain any objection to the grant of the application on the basis of the prohibitions specified in rule

5. In view of these clear provisions there seems to be no merit in the contention that the objection on the ground of res judicata could only be urged before and decided by the Court. The application submitted by the respondents before the Additional Registrar, no doubt, referred in its heading to Order VII, rule 11, but Order XXXIII, rule 5 is also mentioned at the top of the application and in any case it is the substance of the application which is material for the present purposes. It was open to the respondents to show that the allegations made by the applicant do not disclose a cause of action, and if the suit was bit by the bar of res judicata it is obvious that there will be no subsisting cause of action. In Yousif Abid v. Secretary of State (A I R 1936 Sind 130) a petition for permission to sue in forma pauperis was brought an respect of a claim in damages for tort committed by soldiers of the King while quelling civil disturbances under orders of the civil authorities. In exercise of his delegated powers under the rules the Registrar dismissed the application for pauperism on the ground that the petition did not disclose a cause of action against the Secretary of State for Indiai‑n‑Council. The Court after reviewing the legal position came to hold that no suit was competent for damages on account of tort committed by the officers of the Crown, and upon this view held that even if the allegations made in the petition are proved, the applicant will have no cause of action. On this view the learned Additional Judicial Commissioner maintained the order of the Registrar having been validly passed under Order XXXIII, rule 5(d), C. P. C. That res judicata and the bar of limitation have been accepted as grounds for rejection of a pauperism application is supported by various decisions. Reference may be made to cases reported in A I R 1936 Posh. 39, A I R 1937 Oudh 481, A I R 1919 Lah. 4 and I L R 19 Mad.

197. In these cases the view was taken that an applicant has to establish a subsisting cause of action for being entitled to leave to sue as a pauper. In Bhimo v. Trinath (A I R 1963 Orrisa 223), it was held that when the document referred to in the plaint prima facie shows that the claim is barred by res judicata, the rejection of the application to sue in forma pauperis under Order XXXIII, rule 5(A), C. P. C. would be valid. In view of the aforesaid discussion it is clear that if the Court comes to the conclusion that the claim of the applicant is barred by res judicata, it would be competent for the Court or for that matter for the Additional Registrar, in exercise of his delegated power under the Rules to reject the application for pauperism on the ground that the application does not show a cause of action. In the foregoing part of this order I have referred to the specific finding arrived at by the trial Court and affirmed in appeal and revision that the deceased had left no property at the time of his death. It, therefore, follows that a suit for administration of the non‑existent estate of the deceased would be a sheer exercise in futility. The existence of some tangible properties and assets is obviously an important part of the cause of action for a suit for administration of the estate of the deceased. But this issue having been validly decided by a competent Court is binding on the applicant and cannot be re‑agitated in the present suit. The first contention urged in the petition has, therefore no merit. However, as stated earlier, it is contended that the decision given by the Civil Judge on the aforesaid issue will not operate as res judicata as before invoking the bar contained in section I1 the respondents were required to show that toe finding was given by a Court which was competent to entertain the present suit. There is no doubt that in terms section 11 provides for application of the rule of res judicata contained therein the fulfilment of the following conditions (1) The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually or constructively in the former suit. (2) The former suit must have been a suit between the same parties or between the parties under whom they or any one of them claim. (3) The parties as aforesaid must have litigated under the same title in the former suit. (4) The Court which decided the former suit must have been a Court competent to try the subsequent suit or the suit in which such issue is subsequently raised. (5) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court In the first suit. Now there can be no controversy that except for condition No. 4, stated above, the rest of the conditions are fulfilled in the present case. The contention seems to be that the value of the present suit being over Rs. 87 lacs, the present suit is beyond the pecuniary jurisdiction of the Court of Civil Judge, Third Class, and, therefore, it follows that the latter Court was not competent to try the present suit. Mr. Rahimtoola rightly contended that allowing a party by his own act of giving a higher value for the purposes of jurisdiction to escape the bar contained in the rule of res judicata, would be to put premium on subterfuge. He contended that there is authority for the view that a plaintiff cannot be allowed to split his cause of action or enhance the value thereof and escape the objection of res judicata. The Bombay High Court in Yeshwant Bala v. Babai (A I R 1945 Bom. 67), held that the plaintiff cannot evade the provisions of section 11 by binding several causes of action against the same defendant in a subsequent suit and institute it in a Court of superior jurisdiction ; so also he cannot avoid section 11 by splitting up the cause of action of the previous suit, so as to give jurisdiction to an inferior Court. It looks extremely anomalous that the plaintiff should first invoke the jurisdiction of an inferior Court for the redress of his cause of action and having failed therein should now be allowed to re‑agitate that matter try merely enhancing the value of the same subject‑matter and thereby defeating the rule of res judicata. However, in my view, the Code of Civil Procedure has taken care to preserve the rule against double jeopardy and provides a bar in Order II, rule 2, against successive actions in respect of claims arising out of the same cause of action. The cause of action in the previous suit was the deprivation of the applicant of his lawful share in the estate of the deceased by the respondents and, therefore, it was incumbent upon him to seek a decree for administration of the estate of the deceased in? the previous suit. The cause of action relied upon in the present suit, in my view, is not different from the one upon which the previous suit was brought. This suit is, therefore, clearly barred under Order II, rule 2, C. P. C. For the aforesaid reasons I have come to the conclusion that tae, Additional Registrar rightly held that the applicant teas shown no subsisting cause of action and dismissed his application under Order XXXIII rule 5(d), C. P. C. In the result both these applications are dismissed. It will, however, be open to the applicant to pay proper court‑fees if he wishes to file a regular suit on the cause of action urged in the application. S. Q. ?????????????????????????????????????????????????????????????????????????????????????????????????????????????? Application dismissed.