SECRETARY, MINISTRY OF COMMERCE Versus SHARIF AHMAD

This civil revision was directed against the order, dated 29‑1‑11978 of the learned Civil Judge, Lahore, whereby application under, Order 33, Rule 1, C .P. C. to proceed with the suit as a pauper was allowed.

2. The grounds taken in support of the revision petition are:‑‑

(a) that the application for permission to sue in forma pauperis did not show any cause of action but the learned trial Court failed to examine the application in this perspective and thus committed error of jurisdiction by not examining the application in the light of the provisions contained in Rule 5 of Order 33, C.P.C.

(b) that the learned trial Court committed material irregularity in the exercise of jurisdiction while holding that the respondent was a pauper as it failed to take judicial notice and presume from the common course of natural events, human conduct and private business that the respondent applying for a licence for Rs.55,00~000 must be possessed of at least Rs.15,000 the maximum amount payable as court‑fee.

The respondent as per his own version was not in a position to pay the court‑fee, then how he would have fulfilled the conditions of ;rant of Import Licence. It was urged that in order to become qualified besides registration with the Income‑tax Department, an applicant for Import Licence has to deposit Licence Fee @ 1$ for value upto Rs.one lac and @ 2% for value above Rs. one lac:

(c) that nothing whatsoever has been stated in the application as to how and in what Vay the respondent suffered any loss. It was added that as necessary averments are missing, no purpose will be served by granting the permission to the respondent to sue. The suit is bound to fail on this score alone.

3. Learned counsel in reply` submitted that the learned trial Court in view of the evidence produce by the respondent was justified in holding that the respondent was ~ pauper and as such was entitled to sue the petitioners in forma pauperis. He added that the objection that the application did not show cause of action can be raised by the petitioners before the trial Court by moving a petition under order 7, Rule 11, C.P.C. and that this is not the stage to raise such an objection.

4. I have considered the respective submissions of the learned counsel for the parties. Order 33, Rule 5, C.P.C. casts a duty on the Court to reject an application for permission to sue in forma pauperis if any of the factors or prohibitions provided in clauses (a) to (e) is present in a case. One of them is whether the allegations contained do not show a cause of action. Rule 6 provides that where the Court sees no reason to reject the application on any of the grounds stated in Rule 5, it shall fix a day for receiving such evidence as the party may adduce in proof of his pauperism. Rule 7 provides that after examining the evidence, if any, produced by either party and examining the applicant or his agent the Court shall hear any arguments on the question whether the applicant is or is not subject to any of the prohibitions specified in Rule 5. A perusal of the impugned order would show that the learned Civil Judge was not conscious of the duty cast upon him by Rules 5, 6 and 7 of Order 33, C . P. C . Learned counsel for the petitioners submitted that,; as the revision petition has remained pending in this Court for many years. I should go through the application myself to find out whether it discloses any cause of action or not. In this respect in addition to the pleas noted above, it seas submitted that there was no inaction on the part of the Government functionaries as is apparent from the averments contained in the application and that it stands also admitted that the application for import licence was considered by the !Board as directed by the High Court in Writ Petition No. 170 pf 1962 decided on 14‑5‑1971, and the respondent was informed that tie could submit his application for the grant of licence worth Rs. five lacs in cash or for Rs. ten lacs in loan credit and could obtain licence under Import Policy 1974, but no such application was submitted. It was also urged that it has not been disclosed in the application as to how the respondent suffered any financial loss assuming that he had been granted a licence in the year 1971‑72 and as necessary averments have not been made in the application, the question of proving the loss does not arise. It was also the case of the respondent that it was not shown that in 1974 when he was asked to submit the application for Import Licence he was in a position to deposit the necessary fee and as such neither any right of the respondent was infringed nor any basis existed for claiming damages for imaginary loss.

5. It is true that this revision has remained pending for quite sometime but that alone in my view does not furnish sufficient basis for this Court to undertake the exercise wtvi.ch the learned trial Court was require under law to undertake. Moreover, the factual aspects require to be gone into and the cause of justice will be served better if the matter is left to be determined by the learned trial Court, which of course will allow op0ortunity of hearing to the parties. The questions whether the application discloses a cause of action or not or whether the respondent was or was not subject to any of the prohibitions specified in Rule 5, were not gone into by the learned trial Court. The learned trial Court, it is apparent, was not conscious of the mandatory provisions of Rules 5, 6 and 7 of Order 33, C.P.C. Thus, the jurisdiction was exercised illegally.

The net result of the above discussion is that the impugned order, dated 29‑1‑1978 of the learned trial Court is hereby set aside. The application thus stands remanded to the learned trial Court for decision afresh in accordance with law. The parties are, however, left to bear their own costs.

6. The parties are directed to appear before the learned Senior Civil Judge, Lahore, on 16‑11‑1987. Office is directed to forward the record of the trial Court to the Senior Civil Judge immediately.

H. B. T./S‑218/L Case remanded.