P L D 1963 (W (PLP)

(2) Whether the plaintiff has got any cause of action against defendant No. 1 ? (3) Whether the suit is maintainable against defendants Nos. 2, 3 and 4 ? (4) What is the effect of the plaintiff's failure to comply with tie provisions of Order VII, rule 1, C. P. C. (5) Have the provisions of Order VI, rules 2 and 3, been complied with by the plaintiff? If not, what is its effect ? On issue No. 1, the learned Civil Judge recorded his finding to the effect that the plaintiff's suit was to be considered to have been instituted on the 22nd of October 1957 and as such was within time. On issue No. 2, he recorded the finding that the plaintiff had no cause of action against defendant No. 1 (Manager, National Employees Mutual General Insurance Association Limited.) As regards issue No. 3, his finding was that the suit against defendants Nos. 2 to 4 was maintainable. On issue No. 4, the learned Civil Judge held that the omission of mention in the plaint that the plaintiff had paid the Court‑fee on the amount of compensation claimed by him was due to the circumstance that originally an application for permission to sue in forma pauperis had been made and further held that the omission could be ractified through amendment. Issue No. 5 was also decided by the learned Civil Judge in favour of the plaintiff. As a result of his finding on issue No. 2, the learned Civil Judge dismissed the plaintiff's suit as against defendant No. 1 (Manager, National Employees Mutual General Insurance Association Limited), holding that the plaintiff had no cause of action against him and directing that the casts of defendant No. 1 should be paid by the plaintiff. The Court further directed that the amended plaint deleting the name of defendant No. 1 and making necessary corrections in the light of its remarks on issue No. 4 be filed by the 12th of April 1961.

3. In this Court, the learned counsel for the petitioners has addressed himself mainly to the first issue in his arguments. He has contended that the suit of the plaintiff respondent was clearly time‑barred, inasmuch as the date of the institution of the suit, in the circumstances of this case, is the 9th of January 1960 when the full requisite Court‑fee had been paid up by the plaintiff and not the date of the application for leave to sue in forma pauperis, as that application stood rejected on account of the statement of the plaintiff's counsel and the subsequent application made on the plaintiff's behalf to the effect that he could pay up the Court‑fee. The learned counsel argues that the application of the plaintiff‑respondent to sue in forma pauperis should have been deemed to have been rejected or refused on the 12th of November 1958 when the counsel for the plain tiff respondent made a statement to the effect that the plaintiff respondent was prepared to pay the requisite Court‑fee. The learned counsel urged that when it was said on behalf of the plaintiff‑respondent by his counsel that he could pay up the Court‑fee, it amounted to a disclaimer that the plaintiff was a pauper, and in so far as the Court allowed him to pay up the Court‑fee, its order would be tantamount to a rejection of the plaintiff‑respondent's original application for leave to sue in forma pauperis. The learned counsel further argued that if indeed it be held that the first offer made by the counsel for payment of Court‑fee did not amount to a rejection of the plaintiff's application for leave to sue in forma pauperis, the second application made by the plaintiff‑respondent on the 29th of June 1959 for paying up the balance of the Court‑fee, after having moved the Court a second time for permission to sue in forma pauperis in respect of his remaining claim (after pay ing up a portion of the Court‑fee), certainly amounted to a declaration that he was not a pauper; and that the Court's permission to him to make the necessary payment by the 9th of January 1960 must be interpreted as rejection or refusal of his application for permission to sue in forma pauperis, and since the deficiency of the Court‑fee was made up only on the 9th of January 1960, the suit must be considered as having been insti tuted on that date, and this date being more than one year after the date of the alleged accident, the suit was clearly time‑barred.

4. The parties in this ease are not at issue as regards the Article of the Limitation Act which is applicable to the suit. It is common ground that in point of limitation the plaintiff= respondent's suit is governed by Article 22 of the Limitation Act, where under the period of limitation is one year from the commis sion of the injury. If, therefore, the present suit can be related back to the date when the plaintiff‑respondent made his application for leave to sue in forma pauperis viz., the 22nd of October 1957, the suit would be within time, otherwise not. The learned counsel for the petitioners cited in this Court Rais‑ud‑Din and another v. Mst. Zabeda Khatoon (P L D 1960 Lah. 782) in support of his contention that a statement made by the counsel of an applicant for per mission to sue in forma pauperis that the applicant could pay up the Court‑fee if allowed some time, amounted to a concession that the applicant was not a pauper and the Court's granting time to the applicant amounted to refusal of his application under Order XXXIII, rule 7, Civil Procedure Code. This judgment was pronounced by Mr. Justice Ortcheson. In that case, one Mst. Zubeda Khatoon applied for permission to sue the defen dants in forma pauperis ; notices were issued to the defendants and the case was fixed for evidence as regards the pauperism of the applicant. On the date fixed for the evidence, the applicant's coun sel asked for time to make up the deficiency in Court‑fee and the Court granted time up to the 8th of January 1959 for paying up the necessary Court‑fee. But Mst. Zubeda Khatoon filed a second application for permission to sue in forma pauperis on the 6th of January 1959, repudiating the action of her counsel and asking for time to make up the deficiency in Court‑fee alleging that she had never been consulted in the matter. The learned Judge held that the second application by the plaintiff to sue in forma pauperis was barred by Order XXXIII, rule 15, inasmuch as in the circumstances of the case "the action of the counsel ,clearly amounted to conceding that the plaintiff was not a pauper and as the question of whether she was or was not a pauper, is one of fact, the implied admission of the learned counsel is binding on the plaintiff even if, as she alleges, it was made with out instructions from her, an allegation open to considerable doubt." The learned Judge further observed that "although, therefore, it is unfortunate that the trial Court did not pass and express order refusing to allow the plaintiff to sue in forma pauperis, the granting of time must be construed as such a refusal."

5. After having cited the aforesaid authority in support of his contention, the learned counsel urged that when an applica tion is refused under Order XXXIII, rule 7, an order granting the plaintiff the permission to pay Court‑fee cannot be deemed to be one under section 149, Civil Procedure Code and the suit, if time‑barred on the day of the making up of the deficiency of the Court‑fee, would not become other than time‑barred and could not be related back to the date of the making of the application for permission to sue in forma pauperis. In support of his argument, he cited Alopi Prashad and others v. Mst. Gappi and others (A I R 1937 Lah. 151). In this judgment, which was pronounced by a Divi sion Bench of the Lahore High Court, it was held: "The application to sue in forma pauperis is a potential plaint. If it is rejected under rule 5 or rule 7, it never ripens into a plaint. If the application ripens into a plaint, then the date of institution of the suit shall relate back to the date of the filing of the application to sue in forma pauperis. If, on the other hand, such an appli cation is rejected, it cannot be deemed to be a plaint, and the payment of the Court‑fee after the application to sue in forma pauperis has been rejected cannot revive a potential plaint which ceased to exist when the application for leave to sue in forma pauperis was rejected. So where an application for permission to sue in forma pauperis is rejected and a full Court‑fee is paid for a suit for the same relief, the suit must be considered for the purposes of limitation to have been instituted only after the payment of the Court‑fee and not at the date of the presentation of the petition to sue as a pauper." Their Lordships further observed: "Where, therefore, an application for leave to sue in forma pauperis is rejected under Order XXXIII, rule 5 or rule 7, there is no proceeding before the Court and the plaint cannot be said to remain, and an order granting the plaintiff permis sion to pay Court‑fee cannot be deemed to be one under section 149, and the suit must be held to have been instituted on the day on which the Court‑fee is paid."

6. Another authority cited by the learned counsel for the petitioners was Chumna Mal v. Bhagwant Kishore (A I R 1936 All. 584), wherein it was held that if the Court has refused the permission to sue as a pauper under Order XXXIII, rule 7 (3), then the Court, while rejecting the application for permission to sue as a pauper, cannot, under section 149, allow the applicant to pay the requisite Court‑fee and treat the application as a plaint, but that if the Court rejects the application to sue as a pauper under Order XXXIII, rule 5, it can, while rejecting the application, allow the applicant under section 149, Civil Procedure Code, to pay the requisite Court‑fee and treat the application as a plaint.

7. The learned counsel also cited Mahadev Gopal Savant v. Bhikaji Vishram Chavan (A I R 1943 Bom: 292), wherein it was held that "if once the Court passes an order rejecting the application under rule 5 or refusing to allow the applicant to sue as a pauper under rule 7, without keeping the application alive as an unstamped plaint and granting the applicant time to pay the requisite Court‑fees, the proceedings come to an end, and it has no power to do so by a separate and subsequent order. In that case the only remedy for the applicant is to file a regular suit under Order XXXIII, rule

15. In that case for the purposes of limita tion, the suit must be taken as instituted on the day it is actually filed, and he cannot avail himself of the time spent in the pauper proceedings to save the bar of limitation."

8. Now, the authorities, other than Rais‑ud‑Din and another v. Mst. Zabeda Khatoon (P L D 1960 Lah. 782) cited by the learned counsel for the petitioners, deal with cases where the application of the plaintiff to sue in forma pauperis had either been rejected or refused and a second application had been made after a clear rejection or refusal of a former application to sue in forma pauperis. In the present case, no order was passed by the learned Civil Judge rejecting or refusing the application of the plaintiff respondent to sue in forma pauperis. The question, therefore, is whether the statement made by the learned counsel for the plaintiff- respondent on the 12th of November 1958 or the application made on behalf' of the plaintiff respondent on the 29th of Nov ember 1958 really amounted to a refusal by the Court, of the plaintiff‑respondent's application to sue in forma pauperis. The learned Civil Judge not only in his order dated the 29th of March 1961, which is the subject‑matter of the present revision petition but also in his order dated the 22nd of December 1959, where-under he allowed time to the plaintiff‑respondent to make up the deficiency in the Court‑fee by the 9th of January 1960, has clarified that the application to sue in forma pauperis had not been rejected or refused. He has proceeded on the basis that the application to sue in forma pauperis was yet pending. The above‑mentioned authorities cited by the learned counsel for the petitioners, therefore, would not be applicable to the present case. It is true that in Rais‑ud‑Din and another v. Mst. Zabeda Khatoon, the view was taken that the statement of the counsel for the applicant in that case amounted to an admission that the applicant was not a pauper and the allowance of time to pay up the Court‑fee amounted to a refusal of the application to sue in forma pauperis. But the fact cannot be overlooked that the observations of the learned Judge in that case arose out of the facts of that particular case. It is significant, however, that the learned Judge in that case expressed no opinion as to whether or not the Court could allow the applicant in that case time under section 149, Civil Procedure Code, to make up the defici ency. In fact, while sitting in a Division Bench with Mr. Justice Abdul Aziz Khan at Peshawar, in the judgment written by him, with which Mr. Justice Abdul Aziz Khan was in agreement and which is reported as Muhammad Shafi v. Sh. Abdul Aziz (P L D 1961 Pesh. 67), Mr. Justice Ortcheson, while examining whether or not time could be allowed under section 149, Civil Procedure Code, for paying up the Court‑fee when an application to appeal in forma pauperis is refused, observed as follows :‑ "The dismissal of an application for leave to appeal as a pauper leaves the memorandum of appeal accom panying that application undisputed of; the memorandum, though unstamped, is not a nullity and can be validated with effect from the date of presentation by the supply of the requisite stamp within a time fixed by the Court with reference to Order VII, rule 11 (c), and that an Appellate Court has consequently power under section 149 of the Code, when dismissing an application for leave to appeal as a pauper, to grant time to the applicant to pay the requisite Court‑fee on the memorandum of appeal, if the Court‑fee is paid within the time fixed, the appeal will be exempted from the operation of the limitation rule."

9. The view expressed by the Peshawar Division Bench of this Court in the aforesaid judgment is in conformity with the view expressed by a Division Bench of the Lahore High Court in Ram Het Gir v. Banwari Lal (A I R 1938 Lah. 41). This authority has been referred to in Muhammad Shafi v. Sh. Abdul Aziz. In this judgment, it was held that where there is an order to pay the court‑fee by a certain date, simultaneously with the order of refusal under Order XXXIII, rule 7, and the fee is paid, the suit must be held to have been filed when the application to sue as a pauper was made. In fact the same view was taken in Maha Dev Gopal Savant v. Bhikaji Vishram Chavan (A I R 1943 Bom. 292), which has already been noticed. The learned Judges, who pronounced the latter judgment, observed as fallows:‑ "Even if it (the Court) decides to reject the application under Order XXXIII, rule 5, or to refuse to allow the applicant to sue as a pauper under Order XXXIII, rule 7, it may treat the application as an unstamped plaint and either before or at the time of passing the order under rule 5 or rule 7, it may in its discretion under section 149 allow the applicant time to pay the requisite court‑fees, and upon such payment within the time allowed, number and register the plaint. But in doing so, the Court should have regard to the provisions of Order XXXIII, rule 15; and make the payment of the costs mentioned therein a condition precedent. In all these cases, for the purposes of limitation the suit will be deemed to have been instituted on the day on which the application for leave to sue as a pauper is made."

10. It appears to me to be clear that the view expressed in the above‑mentioned judgments is that at the time of rejection) or refusal of an application to sue in forma pauperis, time can be allowed under section 149, Civil Procedure Code, and if such time is allowed by Court and the deficiency in Court‑fee is made up within the allowed time limit, the suit, when registered, relates back to the date when the original application to sue in forma pauperis was made. I find myself in respectful agreement with this opinion.

11. In the circumstances of the present case, it is difficult to hold that the application to sue in forma pauperis had been rejected or refused. But even if it be assumed that the statement f of the counsel, or the applicant that he was prepared to pay up the Court‑fee amounted to an admission that the applicant was not a pauper and the consequent order of the Court allowing time for paying up the Court‑fee amounted to an order of refusal or rejection of the application to sue in forma pauperis, the order or orders allowing time being simultaneous with such applications for time to pay up the requisite Court‑fee, the time allowed for that purpose :must be regarded as being under section 149 of the Civil Procedure Code. The suit must, therefore, be considered as having been instituted on the 22nd of October 1957 and as such within time.

12. In view of the above discussion, I see no substance in the criticism of the learned counsel for the petitioners on issue No. 1.

13. The learned counsel for the petitioners did not seriously contend that the plaintiff‑respondent has a cause of action against defendant No. 1 and that he was a necessary party to the pro ceedings. He, however, feebly urged that since the motor‑car described as having caused the fracture of the leg of the plaintiff-respondent, was insured with the National Employees Mutual General Insurance Association Limited against third party risk, defendant No. 1 (respondent No. 2) was a necessary party. I do not see any force in the above argument. The contention of the learned counsel for respondent No. 2 appears to me to be unassailable that his client is not at all liable to the plaintiff respondent, the contractual relationship of the company, whose manager he is, being with the firm of the petitioners only. If, indeed the petitioners are saddled with any liability, then the question could arise whether or not the National Employees Mutual General Insurance Association Limited, who were the insurers of the car allegedly responsible for the injuries of the plaintiff‑respondent, were liable to make any payment to the petitioners or their firm. But since the company had nothing to do with the bringing about of the injuries of the plaintiff‑respon dent, respondent No. 2 was not a proper party to the suit or this petition. I, therefore, hold that respondent No. 2 has been improperly impleaded in this petition.

14. The third contention raised by the learned counsel for the petitioners in this Court was that the car, which is said to have caused injuries to the plaintiff‑respondent due to the alleged negligence of Allah Ditta, the driver in the employ of the firm, belonged to the firm which comprised other partners, in addition to the petitioners, and that the entire firm consisting of all the partners should have been sued by the plaintiff‑respon dent and that the petitioners alone could not be sued. I see no force in this contention either. It is well known that the partners of a firm are jointly as well as severally liable for the acts of the firm. Section 25 of the Partnership Act provides: "Every partner is liable jointly with 'all the other partners and also severally for all acts of the firm done while he is a partner." The petitioners in the present case are being saddled with a vicarious liability for the negligence of their employee in the course of his employment. It has not been contended before me that the firm is not at all vicariously liable. If, therefore, it is liable, then it is left to the plaintiff‑respondent to make his choice as to whether be wants to sue all the partners of the firm or some of them. Under Order XXX, rule 1, Civil Pro cedure Codes a plaintiff is not debarred from making his choice in the above-mentioned matter. The rule is, as pointed out by the learnt Civil Judge in his order, a permissive one and does not make it incumbent on a plaintiff to sue a firm in the name of the firm. The liability of the partners of a firm being joint and several of the partners could be sued with reference to the liability of the firm. Besides, Order I, rule 9, Civil Procedure Code. lays down: "No suit shall be defeated by reason of the mis-joinder or non joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it." Section 99 of the Civil Procedure Code also discountenances the reversal or varying of a decree on account of any mis-joinder of parties or causes of action. It reads as follows :‑ " No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of airy mis -joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court." I do not think that the contention of the learned counsel for the petitioners that the petitioners are not proper parties and that the firm, to whom the car belongs, should only have been sued, or the entire body of partners, should have been impleaded, has any force.

15. In view of the above, I dismiss the petition with costs. A. H. Petition dismissed.