P L D 1980 Lahore 481 (PLP)

The facts leading to this civil revision are that the petitioner, Muhammad Saeed, made an application for permission to file a suit against the respondent, Punjab Road Transport Board and three others, in forma pauperis, for Tecovery of Rs. 2,92,

000. It was alleged by the petitioner that he was travelling in a bus owned by the first respondent when he met an accident, with the result that his left leg and shoulder were permanently impaired. He, therefore, wanted to claim the said amount as damages.

2. The application was resisted by the first two respondents only. They are the Punjab Road Transport Board, Lahore and the Intizamia Government Transport Service, Jhang. It was pointed out by them that during the pendency of the application the petitioner had been awarded Rs. 5,000 as compensation, under section 67-G of the Motor Vehicles Ordinance, 1965, and since the said fact had not been disclosed by the petitioner, his application was liable to be rejected. Their plea found favour with the Civil Judge, who was seized of the application, and, therefore, the application was rejected by him. Feeling aggrieved by the aforeasid order, petitioner has come up in revision to this Court.

3. The learned Civil Judge passed the imugned order under clause (a) of rule 5 of Order XXXIII of the Code of Civil Procedure read with rule 2 of the said Order. and while so doing he relied on Standard Vacum Oil Co. v. Ch. Anwar-ul-Haq (P L D 1959 Lah. 855) and The Sailkupa Cooperative Multipurpose Society, Ltd., v. Jahangir alias Abul Ahair Muhammad Hadi-ul-Karim (minor) and others (P L D 1957 Dacca 374). Learned counsel for the petitioner contended that since the compensation referred to above was awarded to the petitioner after the filing of the application, the said provisions of the Code of Civil Procedure were not attracted to his case nor the authorities relied upon by the learned Civil Judge were applicable thereto.

4. In reply, learned counsel for the first respondent maintained that the application made by the petitioner for permission to sue in forma pauperis was mala fide inasmuch as he did not disclose therein that he had also applied for the award of compensation, under section 67-B of the Motor Vehicle Ordinance and, therefore, his application had been rightly rejected by the learned Civil Judge. He did not make any submission in regard to the applicability or otherwise of the aforesaid provisions of the Code of Civil Procedure or the precedent cases noted above. It was, however, urged by him that the suit- proposed to be filed by the petitioner was barred by section 67-G of the Motor Vehicles Ordinance and, therefore, his application was hit by clause (d) of rule 5 of Order XXXIII of the Code of Civil Procedure.

5. The application of the petitioner was rejected by the learned trial Court on the ground that he had not revealed to the said Court that he had been awarded compensation amounting to Rs. 5,000 during the pendency of the application. Rule 2 of Order XXXIII required the petitioner to disclose in the application the movable and immovable property belonging to him but since the said compensation had not been allowed to him by the time of the filing of the application he is not to blame for not making a mention thereof in the application. Therefore his case did not come within the mischief of clause (a) of rule 5 of Order XXXIII whereunder an application for permission to sue as a pauper can be rejected if it is not framed and presented in the manner prescribed by rule

2. For the same reason the precedent cases relied upon by the learned trial Court were not applicable to the case of the petitioner. I, therefore, agree with the learned counsel for the petitioner that the application could not be rejected under clause (a) of rule 5 read with rule 2 of Order XXXIII of the Code of Civil Procedure.

6. As for the plea raised by the learned counsel for the. respondent that the application filed by the petitioner was mala fine inasmuch as he had not stated therein that he had taken out proceedings for award of compensation under the Motor Vehicles Ordinance this plea was not precisely raised in the reply filed by the respondents. Moreover, rule 5 of Order XXXIII, where under an application for permission to sue can be rejected does not permit a Court to reject the application on the ground of mala fide. Therefore, the plea that the application was mala fide is of the no con sequence.

7. What is now left to the considered is the contention of the learned counsel for the respondent that the suit sought to be filed by the petitioner was barred by section 67-G of the Motor Vehicles Ordinance, and therefore, his application was liable to be rejected under clause (d) of rule 5 of Order XXXIII. An application can be rejected under clause (d) if the allegation contained therein do not disclose a cause of action. It is not the case o the respondents that the application made by the petitioner did not disclose a cause of action. As for the bar of jurisdiction provided in section 67-G o the Motor Vehicles Ordinance it is to be noted that if a suit is barred b any law it does not mean that there is no cause of action therefor. The bar of jurisdiction is quite different from the absence of cause of action This is amply illustrated in the provisions of rule 1,1 of Order VII of the Code of Civil Procedure in which the non-disclosure of cause of action an the bar of jurisdiction have been separately mentioned as the grounds for rejection of a plaint. I am, therefore, unable to agree with the learned counsel for the respondent that the application in the instant case was his by clause (d) of rule 5 of Order XXXIII of the Code of Civil Procedure.

8. What emerges from the foregoing discussion is that the order by which the petitioner's application for permission to sue as a pauper was rejected was not warranted by the law on the subject. I, therefore, accept tile revision petition with costs, set aside the aforesaid order and remand the case to the learned Civil Judge for fresh decision in the light of the above observations and according to law.

9. The parties are directed to appear before the learned trial Court on 18th March, 1980 for further proceedings. Petition accepted.??????? Case remanded.