DAN Versus SAID

These are six Civil Misc. Applications three each in connection with the filing of two Regular First Appeals. Civil Misc. Applications Nos. 3116‑0 and 3118‑C of 1963 are two applications which have been filed under Order XLIV of the Civil Procedure Code for filing the appeals in forma pauperis. Civil Misc. Applications Nos. 1947‑C of 1974 and 1948‑C of 1974 are under section 5 of the Limitation Act for condonation of delay in filing the aforementioned applications made under Order XLIV, Civil Procedure Code. Civil Misc. No. 3117 and Civil Misc. No. 3119‑C of 1973 are another set of two applications under section 5 read with section 14 of the Limitation Act for condonation of delay in the filing of the two Regular First Appeals. All these applications are being disposed of by this order.

2. Dhan appellant stated to be of unsound mind had filed two suits for possession of land through his next friend namely Mst. Sattan, his wife; which were dismissed on 20‑10‑1972 by the learned Civil Judge 1st Class, Lyallpur. The applications for copies of the judgment and decree were made on 21st October 1972. They were delivered on 30th/31st October 1972. Two separate appeals were preferred before the learned District Judge on 22nd November 1972; which, alongwith other connected documents including the applications for filing the appeals in forma pauperis, were returned to the next friend of the appellant on 5‑6‑1973 on the ground that the value of the subject‑matter being more than Rs. 25,000 the appeals were not competent before the District Judge. From the endorsement by the Clerk of the Court, it appears that the appeals were in fact returned from the Court of the District Judge on 6‑6‑1973. Except for the applications under section 5 of the Limitation Act for condonation of delay in filing the applications under Order XLIV, Civil Procedure Code, all other applications together with the grounds of two first appeals were filed in the High Court by Mat. Sattan the next friend and wife of the appellant on 6th August 1973. It is mentioned in the endorsement on the memorandum of parties made by the Deputy Registrar (Judicial), that they were presented personally by Mst. Sattan. It is further noted that she had made a statement that she did not own any movable or immovable property in her own name or in the name of her husband. It may be mentioned here that the memoranda of appeals together with the applications filed for filing the same in forma pauperis had in fact earlier been entertained by the learned District Judge. Not only this he also initiated an enquiry under Order XLIV, rule 2 of the Civil Procedure Code and in pursuance thereof report dated 28‑2‑1973 was also submitted before the learned District Judge. Both the learned counsel appearing in these applications have requested that in case an enquiry becomes necessary, there is no need for directing a fresh enquiry and that the report and pro ceedings taken in connection therewith. already submitted before the learned District Judge, may be considered sufficient by this Court for the purpose of disposal of the applications made under Order XLIV. Civil Procedure Code.

3. Learned counsel for the respondents has raised the following objec tions to the acceptance of these applications

(i) That as Article 170 and not 156 of the Limitation Act is applicable in this case, therefore (limitation being thirty days) the applications dated the 6th August 1973 for leave to appeal in forma pauperis from judgments and decrees dated the 20th October 1972 are clearly barred by limitation;

(ii) That neither the time spent before the learned District Judge can be excluded under section 14 nor the delay can be condoned under section 5 of the Limitation Act because the appellant and/or his counsel were grossly negligent;

(iii) That there is no proper application for leave to appeal in forma pauperis because the appellant is not of unsound mind, therefore, no application could be filed on his behalf by the next friend under Order XXXII, rule 1 read with rule 15. In this behalf he made reference to earlier litigation when the appellant was admitted or found to be of sound mind. In any case he contended that under Order XXXII, rule 15 before permitting the appellant to be represented by the next friend an enquiry with resultant finding that the appellant is of unsound mind is necessary. Alternatively he contended that under Order XXXIII, rule 2, the disclosure of the assets of the appellant is a sine qua non for filing an application under Order XLIV and because in this case the disclosure of assets is only of the next friend and not of the appellant, therefore, the applications are deficient in essential requirement and are liable to be rejected under Order XXXIII, rule 5. While considering these aspects learned counsel contended that there is an active concealment in these applications of certain admitted facts, therefore, they should not be allowed. The alleged facts are:‑

(a) That the earlier suit was not filed in forma pauperis (while in the applications it is stated otherwise);

(b) That the appellant according to the aforementioned report owns an ehata (while in the applications no mention has been made of this property);

(iv) That if it is accepted that the appellant possessed and/or owned the aforementioned ehata of 18 marlas, which is saleable property, then he has sufficient means as contemplated in the definition of pauper in Order XXXIII, rule 1 and, therefore, the application for leave to appeal as pauper, should not be allowed;

(v) That under proviso to rule 1 of Order XLIV unless it is proved that the judgment and decree appealed from is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust, these applications cannot be allowed. The question of mala fides has also been raised in support of this contention.

4. Relying on Lahore High Court Rules and Orders, Volume V, Chapter 1‑B, rule 1, learned counsel for the appellant‑petitioner contended that no application for leave to appeal in forma pauperis can be entertained without filing the memorandum of appeal alongwith the application, therefore, the period of limitation for filing an application for leave to appeal as pauper (in the Lahore High Court) should be deemed to have been provided by Article 156 (90 days for filing an appeal in the High Court) and not under Article 170 of the Limitation Act. In any case according to him on account of this anomaly condonation should be allowed under section 5 of the Limitation Act; that the time consumed before the learned District Judge should be excluded under section 14 of the Limitation Act and in any case it is condonable because the appellant was not at fault if at all, it was a genuine mistake committed by the lawyer as also by the staff and the Presiding Officer of that learned Court; that the assets mentioned in the applications, in fact, are of the appellant and not of the next friend (who is the wife of the appellant) and the use of the word 'her' instead of 'his' according to the learned counsel was due to an innocent mistake of genders and can be corrected or ignored under section 151, C. P. C. As to the omission of the mention of ehata he explained that it was thought by the person who drafted the applications that the ehata had also gone with the other property which is the subject‑matter of the suit and in any case was not in possession of the appellant, therefore, its mention in the schedule of property was not necessary. As to the earlier litigation he explained that initially it was started on the basis that the appellant was a pauper but only subsequently the court‑fee was paid therefore, there was no active concealment in this behalf; that even the ownership of ehata does not show that the appellant has means to finance the litigation, therefore, on merits the applications cannot be rejected; that the mere fact that in earlier litigation and or at any previous stage the appellant was found to be of sound mind does not necessary mean that he is not mentally infirm. In fact his next friend explained in this Court on a Court question that he (the appellant) suffers from such a mental ailment that he seemingly becomes normal occasionally in other words he sometimes has lucid interval. Lastly it was contended that the judgment of the trial Court is being impugned in first appeal in this Court and that there was no justification for the learned trial Judge to have dismissed the suit on the ground of so‑called mala fide, therefore, the condition in the proviso to sub -rule (1) of Order XLIV is satisfied in this case.

5. It may be mentioned here that two applications, namely, Nos. 3117 and 3119 under section 5 read with section 14 of the Limitation Act were filed with the formal prayer that the delay may be condoned and the appeals may be decided on merits. Learned counsel for the respondents objected that these two applications having been filed in connection with the appeals which had not yet been admitted and there being no separate applications under section 5 for making the applications under Order XLIV, therefore, these applications merited rejection on their being prima facie barred by limitation. The learned counsel for the appellant then made verbal request for permission to file separate applications under section 5 of he Limitation Act. I permitted him to do so because the original applications filed under section 5 read with section 14 of the Limitation Act in so far as their contents and dates of their filing are concerned. could be made applicable to the applications for leave to appeal as pauper, as also to, the appeals and it would be only the satisfaction of the formality and/or only by way of abundant caution that separate applications under section 5 qua the applications for leave to appeal (in forma pauperis) were necessary. It is in these circum stances that the two Applications Nos. 1947‑C and 1948‑C of 1974 were filed on 11‑6‑74.

6. Learned counsel for the respondents relied on Food Stuff Supply Company v. Irfan Cotton Oil Mills and 2 others P L D 1958 Lah. 325 in support of his con tention that the appellant's counsel before the learned District Judge was grossly negligent, therefore, there is no justification for application of sections 5 and 14 of the Limitation Act. No doubt it was admitted before the learned District Judge by the learned counsel that the valuation of the subject‑matter of appeal for purposes of jurisdiction was more than Rs. 25,000 as it was mentioned to the memorandum of appeal and the original plaint and thus prints facie the ruling cited by the learned counsel would be attracted but on deeper scrutiny it is found that the valuation in the plaint was adopted from an earlier decision in appeal by the learned District Judge. It was not the voluntary valuation which it is not denied was much less and in accordance therewith the appeal should have been filed before the learned District Judge. One of the grounds taken in appeal filed before the learned District Judge on 22‑11‑72 was "that the decision of the previous suit against Syed and others could not operate as res judicata to the facts of this case". Looked at from this angle if in deference to the previous appellate decision the valuation was placed in accordance therewith it did not mean that the appellant had no independent case of his own in this behalf. In these circumstances if the appeal was filed before the District Judge this would neither show gross negligence nor mala fide. On this basis therefore, the ruling cited by the learned counsel would be distinguishable and thus is not applicable in the circumstances of the case. On the other hand by analogy the other ruling in the same year, in the case Masood Ali v. Ali Haibat Khan and 2 others P L D 1958 Lah. 340 would cover this case. The counsel therein was misled because of the valuation for purposes of jurisdiction, appearing at an unusual place in the decree‑sheet. He filed an appeal in the Court of the District Judge instead of High Court on the basis of wrong contents, as to valuation, contained in unattested copy of the plaint supplied by the appellant. This mistake was treated as bona fide. There is considerable force in the argument of the learned counsel for the appellant that for several months the mistake was not detected either by the Presiding Officer or the staff of the learned District Judge. If they could make a genuine mistake it cannot be said that the counsel must necessarily have been grossly negligent. The reliance in this behalf by him on Mst. Umerunnisa v. Fateh Ali and 2 others P L D 1971 Kar. 533 is fully justified. This is not at all. In Nazar Muhammad and another v. Mst. Shahzada Begum and another P L D 1974 S C 22, it was held that mistaken advice by the counsel can be considered sufficient ground for condonation under section 5 of the Limitation Act. In this case even if it be assumed that the counsel gave a wrong advice to the appellant by filing the appeal before the District Judge it cannot be said that the advice was mala fide and/or that the appellant should not have accepted this advice. In yet another case namely S. M. Sadiq v. Settlement Commissioner and others 1974 S C M R 149, their Lordships were pleased to condone the delay in filing an application for Special Leave to Appeal in the Supreme Court on a frank admission made by the counsel therein that the mistake was due to his wrong impression that during long vacation of Supreme Court, time would not run. The condonation was made in that case solely on the ground that the counsel "frankly conceded that this mistake was his". In this case also the counsel at the time the matter was taken up by the learned District Judge, frankly conceded that "the District Court is not competent to hear the present appeal". Keeping in view all the above circumstances I hold that the appellant has been prosecut ing with due diligence the other proceedings before the District Judge in good faith and it was only because of the defect of jurisdiction that the learned District Judge could not hear the appeal. I also hold that the appellant has shown sufficient cause for the delay in filing the application for leave to appeal in forma pauperis as also the filing of the appeal beyond the prescribed periods of limitation, of thirty days under Article 170 and 90 days under Article 156.

7. A subsidiary argument was raised that section 5 of the Limitation Act does not apply to application for leave to appeal in forma pauperis. Article 170 of the Limitation Act provides period of thirty days (from the date of decree appealed from) "for leave to appeal as pauper". Obviously, this leave is to be sought through an application and there is nothing in the language of section 5 to exclude, an application for leave to appeal, as a pauper from its ambit. Same view was taken in Ram Charan v. Bansidhar and others A I R 1928 All. 499=26 A L J 847 and Mst. Ram Dulari and others v. Mst. Alian Bibi and others A I R 1942 Oudh 240. The contrary view taken in some old rulings with respect it is pointed out is not in accord with the language used in the above‑referred provisions.

8. The question that arises next is whether in this case the period spent before the learned District Judge can be excluded under section 14 of the Limitation Act. In this case I have found that there was no lack of diligence nor of good faith in the appellant's prosecuting the appeal before the learned District Judge. In fact after it was entertained and regular proceedings were held thereon as a result whereof a report as to the assets and means of the appellant for purposes of disposal of his application for leave to appeal in forma pauperis,., had already been received in that Court. Subsection (2) of section 14 provides that in computing the period of limita tion prescribed for any application the time during which the applicant has been prosecuting with due diligence another civil proceedings, whether in the Court of first instance or in a Court of appeal, against the same party for the same relief, shall be excluded where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. In my view this subsection would cover "any application" as is referred to in Article 170 "for leave to appeal as a pauper". As all other conditions are satisfied, therefore, the appellant is entitled to the exclusion of the period between the 22nd of November 1972 B to 6th June 1973 (the date when the memorandum of appeal was returned to him) under section 14 of the Limitation Act. That being so if the period under section 12 is also excluded then obviously the two applications would have to be deemed to be within time, if the case is considered under Article 156 of the Limitation Act. I may, however, observe that even if section 14 of the Limitation Act would not have been attracted to this case the circumstances narrated above are sufficient for condonation of delay under section 5, for which sufficient cause has been shown. In this behalf it cannot be ignored that by virtue of rule 1, Chapter 1‑B of Lahore High Court Rules and Orders, Volume V as also Order XLIV, rule 1, C. P. C. an application for leave to appeal as a pauper cannot be filed nor can it be entertained by the High Court unless it is accompanied by the memorandum of appeal. Normally the period for filing an appeal in the High Court allowed under Article 156 is 90 days. This would. include the time requisite for making preparations and doing other similar things which the framers of the law visualized, would be necessary. If the rules which in the present context would have the force of law, require that the memorandum of appeal should be filed with the application for leave to appeal as a pauper; then in case the appellant is obliged to observe the limitation as prescribed in Article 170 (of thirty days) for filing the application under Order XLLV, C. P. C., he would, obviously, in so far as the preparation for filing the "appeal" is concerned, be deprived of 60 days, the balance of period provided in Article 156. The situation created by the aforementioned rules was not visualized by the framers of the law as contained in Articles 156 and 170 of the Limitation Act. This undoubtedly is an anomaly which if the law is to be strictly applied works against the appellant who wants to seek leave to appeal as a pauper, for no fault of his and thus is likely to lead to injustice. This anomaly was also pointed out in Syed Lall Shah etc. v. Azad Jammu & Kashmir Government P L D 1966 Azad J & K 15 but was overcome in another manner on account of the distinguishable features in the facts of that case as the need to file an application under Order XLIV/XXXIII, C. P. C. arose subsequent to the filing of the appeal therefore, Article 170 of the Limitation Act was not applicable in that case. But in cases like the present one unless the law is properly amended the only remedy for an applicant/appellant is to seek condonation under section 5 of the Limitation Act for which as discussed above apart from other consideration this anomaly itself is a "sufficient cause". In the light of the above discussion I hold that firstly if the requisite periods under sections 12 and 14 are excluded the applications and the appeals are not time‑barred qua Article 156 of the Limitation Act and in the alternative even if Article 156 and section 14 is not attracted sufficient cause in this case has been shown for condonation of delay under section 5 of the Limitation Act.

9. I do not agree with the learned counsel for the respondent that an elaborate enquiry is necessary to see whether these applications and appeals have justifiably been filed through a next friend on the assumption that the appellant is of unsound mind. Order XXXII, rule 15, C. P. C. no doubt provides that the provisions contained ip rules 1 to 14 of the said Order, so far as they are applicable, shall extend to persons adjudicated to be of unsound and to persons who though not so adjudicated are found by the Court on enquiry by reasons of unsoundness of mind or mental infirmity, to be incapable of pro tecting their interest when suing or being sued. But a detailed and regular enquiry into "unsoundness of mind" is not an absolute and mandatory rule before permitting the next friend to file an application or appeal. It is also provided that if the appellant has not been "adjudged" to be of unsound mind and/or in fact be is not "found" to be of unsound mind, but he only suffers from any "mental infirmity" which makes him incapable of protecting his interest when suing or being sued then, the requirement of law would be considered as satisfied. Thus the finding as to 'mental infirmity' would require much less an enquiry than one into the `unsoundness of mind'. Mental infirmity can be due to various causes not necessarily of unsoundness of mind. Therefore, enquiry into unsoundness of mind is not a sine qua non for allowing the appel lant to file an appeal through next friend. In this case in the presence of both the learned counsel, on the Court questions, the next friend of the appellant explained the mental condition of the appellant. According to her he suffers from derangement in which of course there are lucid intervals but his general condition is that of mental infirmity. The statement made in this Court finds support from the history of the litigation in this case which shows that on account of the confusion created by these lucid intervals the next friend and/or the counsel acting on behalf of the appellant have been changing position qua unsoundness of mind at various stages. Thus even if the above circumstances are not enough to come to a conclusion that the appellant is of `unsound mind' they are sufficient to satisfy me that he is `mentally infirm' and is in, capable of protecting his interest when filing these appeals. It may be observed here that this finding is only with regard to the present stage of litigation and shall not have any effect on the questions involved in the subject‑matter of the suits and appeals as to the mental capacity of the appellant to act qua disposal of his property. No doubt in Munshi Abdul Ghani and another v. Protiva Rant Devi and others P L D 1952 Dacca 450 it was held that it must be found on enquiry "properly held" that for the reasons of unsoundness of mind or mental infirmity a person is incapable of protecting his interest but with respect it is observed that the difference between the two states of mind, one unsoundness and the other of infirmity was not visualized nor it was noticed that in cases like the present one a detailed enquiry might be obviated by the mental history available in the litigation followed by the party concerned and on other material available on record. Therefore, I am unable to follow the general proposition laid in the said ruling. Instead, the course indicated in Chavala madugu Govindayya and another v. Suddapali Ramamurathi and others A I R 1941 Mad. 524 is more in accord with the language used in Order XXXII, rule 15 and is also conducive to advance the ends of justice. The possibility of any injustice can be excluded by an enquiry which can be subsequently held, on an objection to be raised by any interested party ; with regard to which there is no bar as indicated in the Madras case. I, therefore, hold that there is nothing wrong in the applications under Order XLIV for leave to appeal as a pauper having been filed by the appellant through next friend. The circumstance that the appellant was earlier deemed or adjudged as of sound mind, cannot be treated as having force of res judicata qua the mental infirmity and/or lucid intervals, as far as the present state of mind of the appellant is concerned. For all these reasons I do not agree with the learned counsel of the respondent that there was no justification in this case for the applications to have been filed through next friend.

10. Much stress was laid on the fact that in the applications under Order XLIV the assets of the next friend and not of the appellant have been mentioned. This as explained by the learned counsel for the applicant/ appellant is an innocent mistake. The next friend is the wife of the appellant and she has no independent property of her own. What she mentioned in the application is the property owned by both the husband and the wife. I have no reason to doubt the statement of the learned counsel that he on account of mistake instead of using the word 'his' has used the word `her' and similarly instead of using the word 'he' , `she' has been used in the application. This mistake can be ignored/corrected under section 151, C. P. C.

11. I also do not agree with the respondents' counsel that the appellant and/or his next friend is guilty of any active concealment in so far as the con tents of the application are concerned. It has been explained that the averments that the suit in the lower Court was instituted in forma pauperis is factually correct because initially in fact the suit was filed in forma pauperis. It was on account of the order of the Court that the court‑fee had been paid. This, therefore, does not amount to wilful misrepresentation. Omission of the mention of the ehata, which it is clear from the aforementioned report is owned by the appellant, has also been adequately explained. The appellant/ next friend was under the impression that the ehata has also gone out of the ownership of the appellant but as is mentioned in the report the Jamabandi shows otherwise. However, it is mentioned as a fact in the report that the ehata is not in the possession of the appellant. This would show that the explanation is not unfounded. The mere entry in the column of ownership of the ehata does not show that the appellant has full power on the disposal thereof and in any case it does not appear (even if he wants to sell it without being able to deliver the possession) it would attract any customer. Order XXX, rule 1 provides that if the person concerned is not in possession of sufficient means enabling him to pay the court‑fee prescribed by law for the plaint he would be treated as a pauper. `Means' would imply such assets and resources which can be converted into funds for financing the litigation. In this case the court‑fee would be more than Rs. 1,600. The appeal was presented in 1973. It is not shown that the ehata, without possession, could at all be sold or even mortgaged within the period available for filing the appeal so as to raise funds ; nor that, if it could be sold, it would have fetched about Rs. 1,600 as its price. No other item of the property worth conversion into money has been pointed out from the side of the respondent. I am satisfied that the appellant is not possessed of sufficient means to pay the fee prescribed by law.

12. The next question is whether the applications merit rejection under the proviso to rule 1 of Order XLIV of C. P. C. If there is any "reason to think" that the decree is contrary to law or some usage having the force of law or is otherwise erroneous or unjust, it would not be possible to summarily reject the applications. This is first appeal and the judgment of the learned trial Court can be scrutinised on points of both law and facts. I do not agree with the respondent's counsel that the requirements of proviso to rule 1 of Order XLIV, C. P. C. are to be `proved' before the application thereunder is allowed. That course, at this stage, would prejudice the case of the respon dents in the appeal. This obviously could not be the intention of the law‑makers that is why the expression used in the proviso in this behalf "if (the Court) sees reason to think"‑a much lesser form of satisfaction than "belief ". The `reasons to think', thus, need not go beyond a prima facie satis faction. Keeping this interpretation of the proviso in view I have gone through the impugned judgment and other necessary parts of the record. The learned trial Court, it appears prima facie, did not correctly apply rule 12 read with rule 15 of Order XXXII of C. P. C., in refusing the appellant to proceed with the suit, instead of his next friend doing the same, by amending the plaint. Moreover while deciding issue No. 1 it has been ignored that rule 15 of Order XXXII as discussed in this judgment, also visualizes lesser form of mental incapacity than that of 'unsoundness of mind', that is `mental infirmity' of the type mentioned therein. Similarly. the history of the appellant's mental condition has been, it seems, illegally ignored when deciding the same issue. It is also doubtful whether the suit could be dismissed on the so‑called ground of mala fide. All these amongst others are, 'sufficient reasons to think' that the impugned decree is contrary to law and usage having force of law and it is also otherwise erroneous and unjust.

13. In the light of the above discussions I, while overruling the objections of the learned counsel for the respondents, allow all these six applications. There shall be no order as to costs.

14. The appeals are admitted to regular hearing. Notice.

15. Learned counsel for the respondents accepts notice.

K. B. A. Applications accepted.