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Bombay Belting Co. Vs. Sew Pujan Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 2569 of 1963
Judge
Reported inAIR1965Cal233,69CWN580
ActsPresidency Small Cause Courts Act, 1882 - Section 9; ;Practice and Procedure (Calcutta) Rules - Rule 1 and 1(3); ;Code of Civil Procedure (CPC) , 1908 - Section 8 - Order 23, Rule 1(3) - Order 33, Rule 15
AppellantBombay Belting Co.
RespondentSew Pujan Singh
Appellant AdvocateH.P. Mukherjee and ;Mansukhlal Mehta, Advs.
Respondent AdvocatePrasanta Kumar Banerjee, Adv.
DispositionApplication dismissed
Cases ReferredHtai v. U. Hmai
Excerpt:
- .....on the same cause of action, he must be held to be barred under order 23, rule 1(3) of the code of civil procedure, which is in pari materia withrule 1(3) of chapter xxiii of the rules of practice and procedure under section 9 of the presidency small cause courts act and which provides inter alia as follows:'where the plaintiff withdraws from a suit ......he shall be precluded from instituting anyfresh suit in respect of such subject-matter or such part of the claim.' 4. many decisions of different high courts had occasion to consider this provision of the civil procedure code but i do not think they are relevant for the purpose of a decision on the point actually raised here which is concerned not so much with the provision of the civil procedure code as with the special provisions of.....
Judgment:

P.B. Mukharji, J.

1. This Rule raises a short but interesting point.

2. The facts giving rise to this Rule may be stated briefly. The plaintiff, a dismissed driver made an application to sue as a 'poor person' in the Presidency Small Cause Court, Calcutta, his employer for recovery of damages for wrongful dismissal. His claim was for a decree for Rs. 1870/-on that ground. The special feature about this case is that he had first made an application to sue as poor person for this claim but later on he withdrew that application. The learned Chief Judge who made that order on the 22nd April 1961 recorded in the order-sheet only this order inthis form:

'Lawyers for the parties present. Application is withdrawn.'

No leave or permission of the Court was obtained by the plaintiff to bring either a fresh application to sue as a poor person or to bring a suit otherwise. Nevertheless subsequently the driver who is the plaintiff opposite party in this Rule made another application to sue as a poor person beforethe Presidency Small Cause Court, Calcutta, in the same year 1961. This application was allowed by the Presidency Small Cause Court. Finally, on merits and on hearing evidence the learned trial Judge decreed the suit in favour of the opposite party for the sum of Rs. 1767/-.

The petitioner employer who was the defendant in the suit then made an application under Section 38 of the Presidency Small Cause CourtsAct against that decision. The point urged by the employer petitioner is that no second application or suit was permissible when the first application was withdrawn without express leave or permission of the Court to bring in a second application or a second suit on the same cause of action. The FullBench of the Small Cause Court overruled the petitioner's objection and dismissed his application tinder Section 38 of the Presidency Small Cause Courts Act upholding the finding of the trial Judge.

3. Now the only point urged before me is that this suit could not be entertained by the SmallCause Court when the first application to sue as apoor person had been withdrawn without express leave or permission of the Court to bring a second application on the same cause of action. Mr. Mukherjee for the petitioner formulates his objection in the following terms:

The previous application for permission to sue as a poor person was really a suit and when the plaintiff withdrew the suit without taking the Court's permission to file a fresh application on the same cause of action, he must be held to be barred under Order 23, Rule 1(3) of the Code of Civil Procedure, which is in pari materia withRule 1(3) of Chapter XXIII of the Rules of Practice and Procedure under Section 9 of the Presidency Small Cause Courts Act and which provides inter alia as follows:

'Where the plaintiff withdraws from a suit ......he shall be precluded from instituting anyfresh suit in respect of such subject-matter or such part of the claim.'

4. Many decisions of different High Courts had occasion to consider this provision of the Civil Procedure Code but I do not think they are relevant for the purpose of a decision on the point actually raised here which is concerned not so much with the provision of the Civil Procedure Code as with the special provisions of the Presidency Small Cause Courts Act and the Rules made thereunder.

5. To clear the ground it is essential to state outright that on the applicability of the Civil Procedure Code there is a vast difference between the Presidency Small Cause Courts Act and the Provincial Small Cause Courts Act. Section 7 of the Provincial Small Cause Courts Act expressly lays down that the procedure prescribed in the Code of Civil Procedure shall, save in so far as otherwise provided by that Code or by this Act be the procedure followed in the Court of Small Causes in all suits cognizable by it and in all proceedings arising out of such suits. There are certain provisos to that section which are not relevant for the purpose of the present application. This statutory provision only means this that there is a general application of the Civil Procedure Code to the Provincial Small Cause Courts.

Not so, however, in the case of the Presidency Small Cause Court. Section 8 of the Civil Procedure Code itself makes a special provision for the Presidency Small Cause Court by saying that save as provided in Sections 24, 38 to 41, 75, Clauses (a), (b) and (c), 76, 77 and 155 to 158 and by the Presidency Small Cause Courts Act, the provisions in the body of the Civil Procedure Code shall not extend to any suit or proceeding in any Court of Small Causes established in the towns of Calcutta, Madras and Bombay. There is a proviso also attached to Section 8 saying that the relative High Courts may from time to time, direct thatany such provisions not inconsistent with the express provisions of the Presidency Small Cause Courts Act, and with such modifications and adaptations shall extend to suit or proceedings in such Court.

In fact Section 9 of the Presidency Small Cause Courts Act mentions the procedure and practice of that Court by providing that the High Court may from time to time by rules having the forceof law prescribe the procedure to be followed and the practice to be observed by the Small Cause Court.

6. Now so far as the procedure of the Presidency Small Cause Court is concerned on this point of suing as a poor person there are special rules which govern such procedure and there are significant differences between that procedure and the ordinary procedure under the Civil Procedure Code on the point of suits by paupers. In other words the procedure prescribed for suits by 'paupers' in Order 33 of the Civil Procedure Code is materially different from the procedure of suits by 'poor persons' as prescribed! by the rules and practice of the Presidency Small Cause Courts Act. It will not be necessary to enumerate all the differences, but it will be necessary to mention the major difference bearing on the point under decision in this Rule.

7. In the different provisions made underOrder 33 of the Code of Civil Procedure for suits by paupers the essential point to emphasize in thisconnection is that the person intending to sue as a pauper makes a combined application to sue in forma pauperis with the particulars of a plaint. In fact Order 33, Rule 2 of the Civil Procedure Code lays down that every application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits and shall be signed and verified in the manner prescribed for the signing and verification of pleadings. Such a provision is absent from the rules under the Presidency Small Cause Courts Act. Again under Order 33, Rule 8 of the Civil Procedure Code it is expressly laid down that where the application is granted, it shall be numbered and registered and shall be deemed the plaint in the suit. In other words the application is the plaint and the plaint is the application under the Civil Procedure Code. One more point of difference may be emphasised in this connection. There is express provision inOrder 33, Rule 15 of the Civil Procedure Code stating that an order refusing to allow the applicant to sue as a pauper shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue. There is nosuch provision in the rules and practice under the Presidency Small Cause Courts Act.

8. A glance now at the major provisions of the rules under the Presidency Small Cause Courts Act will make the contrast plain and clear. Under the Rules of Practice and Procedure under Section 9 of the Presidency Small Cause Courts Act Chapter XXXIII rules are made for 'suits by poor persons'. Rule 1 lays down that an application under Section 74 of the Act for exemption from payment of court-fees shall contain a statement of all property belonging to the applicant, with the estimated value thereof, and also of his income, if any, and it shall be signed and verified by the applicant, and shall be presented with the plaint an the suit desired to toe instituted. Then Rule 4proceeds to lay down;

'Where the application is granted, the plaint presented along with it shall, on payment of the court-fee, if any, directed to be paid thereon within such time as the Court may fix, and if no court-fee is directed to be paid, then forthwith, be dealtwith as a plaint duly presented with the full court-fee'.

It will be seen at once from these rules that unlike the Civil Procedure Code scheme under Order 33, here there is no combined application to sue as a poor person with particulars of plaint stated therein. The application to sue as a poor person is kept separate from the plaint. The application has to be presented with the plaint. The Presidency Small Cause Court Rules make it clear that the application is first to be granted and then the plaint presented along with it will be dealt with as a plaint duly presented and not before and not otherwise.

9. Therefore under the rules of the Presidency Small Cause Courts Act withdrawal of an application to sue as a poor person cannot mean withdrawal of the suit itself. Unless the application is granted the suit is not instituted or presented under the rules of Practice and Procedure of the Small Cause Courts Act. Therefore, withdrawal of an application to sue under the Rules of Practice and Procedure of the Presidency Small Cause Courts Act cannot come within the mischief of either Order 23, Rule 1(3) of the Civil Procedure Code or similar Rule 1(3) under Chapter XXIII of the Rules of Practice and Procedure of the Presidency Small Cause Courts Act, because they deal with withdrawal from 'a suit'. Significantly againthe whole of Chapter XXXIII of the Rules of Practice and Procedure of the Presidency Small Cause Courts Act makes no reference to any provision comparable to Order 33, Rule 15 of the Code of Civil Procedure which provides that refusal to allow an applicant to sue as a pauper will bar a second application by the same party on the same cause of action.

10. Section 74 of the Presidency Small Cause Courts Act provides that the Small Cause Court may, whenever it thinks fit, receive and register suits instituted by poor persons and may issue processes on behalf of such persons without payment or on a part-payment of the fees mentioned in Sections 71 and 72 of that Act. Under Chapter VI of the Rules of Practice and Procedure of the Presidency Small Cause Court, it is provided in Rule 13 that applications under Section 74 of the Actshall be presented to the Chief Judge.

11. Therefore, I am of the opinion that under the special procedure recognised by the Rules of Practice and Procedure made under Section 9 of the Presidency Small Cause Courts Act read with Section 8 of the Civil Procedure Code a withdrawal of an application to sue as a poor person does not bar a second application to sue as such poor person and such a withdrawal without leave of the Court to bring a fresh application of suit is not hit by either Order 23, Rule 1(3) of the Code of Civil Procedure or by Rule 1(3) of Chapter XXIII of the Rules of Practice and Procedure under S. 9 of the Presidency Small Cause Courts Act.

I need only to add that the Rangoon High Courtin Ma E Htai v. U. Hmai, reported in AIR 1931 Rang. 79(2), held that the word 'refuse' in, Order 33, Rule 15 means refusal on merits and does not cover withdrawal such as what has happened in the facts of this case. Therefore,even if Order 33, Rule 15 of the Civil Procedure Code can be made applicable to this procedure to suits by poor persons under the Presidency Small Cause Courts Act which I do not think it can be done, even then it cannot help the petitioner in the facts of this case.

12. The application, therefore, must fail and the Rule is discharged with costs assessed at onegold mohur.


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