PURUSHOTHAMAN NAIR v. VENUGOPALAN — 1980 DIGILAW 114 (KER)

Judgment :- 1. The petitioner is the plaintiff in O.S. No. 135 of 1975 on the file of the Subordinate Judge's Court, Trivandrum. He filed the suit claiming damages for the suffering undergone, loss of amenities of life and shortened expectation of life due to injuries sustained by him as a result of a motorcycle hitting against him. The incident happened at 4.45 p.m on 14th May, 1973. The plaintiff contended that the motor-cycle was being driven by the first defendant in a rash and negligent manner with the second defendant seated at the pillion. As a result of the incident, the plaintiff suffered extensive injuries which included loss of seven teeth. The plaint was presented with a prayer to receive it in forma pauperis. After notice to the defendants the petition was allowed on 8-6-1976 with a direction to register the application as an original suit. O.S. No. 135 of 1976 was accordingly registered on 14-6-1976 and summons was ordered on 17-6-1976. Summons was not served on the second defendant. The court directed service by affixture and publication of the summons in a Malayalam daily. The second defendant did not appear on the date fixed for his appearance. He was accordingly declared ex parte. Since the first defendant was also absent the suit was decreed on the basis of an affidavit filed by the plaintiff. The second defendant filed I. A. No. 8413 of 1977 on 4-11-1977 for setting aside the ex parte decree. In the affidavit accompanying the petition he stated that he came to know of the decree only on 2-11-1977, that he was working as a Doctor and Group Medical Officer, in Then mala Estate, that he did not know to read Malayalam, that the building on which summons was affixed was being occupied by tenants for the past several years and that if he had been served with summons he would have contested the suit effectively. According to him, the plaintiff had no manner of right to realise any amount from him. Even though the petition was opposed the court allowed the petition on condition that the petitioner would pay or deposit for payment to the plaintiff-respondent unconditionally Rs. 300/- on or before 3-7-1978. In default of payment the application was to stand dismissed with costs of the respondent. It is this order that is challenged by the petitioner-plaintiff. 2. Even though the petition was opposed the court allowed the petition on condition that the petitioner would pay or deposit for payment to the plaintiff-respondent unconditionally Rs. 300/- on or before 3-7-1978. In default of payment the application was to stand dismissed with costs of the respondent. It is this order that is challenged by the petitioner-plaintiff. 2. The main contention put forward by the counsel for the petitioner is that the respondent had notice in I. A. No. 42 of 1974, the petition to sue in forma pauperis. He was appearing through counsel. On 8-6-1976 when the petition was allowed the second defendant-respondent knew that the petition would be registered as a suit. It was therefore his duty to ascertain the date of posting and to have appeared and contested the suit. In such cases, according to the petitioner, it was not incumbent on him to have taken out summons against the petitioner or the first defendant. Reliance was placed on two decisions of the Supreme Court: (1) Vijai Pratap Singh v. Dukh Haran Nath Singh & another (AIR 1962 SC 941); and (2) Shri. M. L. Sethi v. Shri. R. P.Kapur (AIR 1972 SC 2379). In the former case the Supreme Court held that the provisions contained in 0.1 R.10 would apply even in the case of an application for leave to sue in forma pauperis. The latter case related to the question as to whether the provisions contained in 0.11 R.12 relating to discovery of documents would apply to proceedings under 0.33. The Supreme Court held that the provisions would apply. The above decisions were relied upon in support of the contention that the proceedings under 0.33 are really proceedings in connection with the suit and that therefore the suit subsequently registered should be considered to be a continuation of the proceedings under 0.33, which preceded such registration. If that be so, according to the petitioner, a notice issued in the petition for leave to sue in forma pauperis should be taken as summons issued under 0.5 R.1. Reliance was placed on the first proviso to 0.5 R.1, which states that no summons need be issued when the defendant has appeared at the presentation of the plaint and admitted the plaintiff's claim. Reliance was placed on the first proviso to 0.5 R.1, which states that no summons need be issued when the defendant has appeared at the presentation of the plaint and admitted the plaintiff's claim. Therefore, the first question to be considered is whether the second defendant having been served with notice in the petition for leave to sue in forma pauperis it was incumbent on the court to have issued summons under 0.5 R.1. I may state at the outset that the contention that the proviso to 0.5 R.1 would apply is unsustainable inasmuch as under the said proviso a summons can be dispensed with only in cases where the defendant appeared on the presentation of the plaint and admitted the claim put forward in the plaint. In the instant case there has not been any admission by the second defendant of the claim made in the plaint at any time. Even otherwise the presentation of the plaint mentioned in the proviso is not equivalent to presentation of an application for leave to sue in forma pauperis. A party need appear in response to an application to sue in forma pauperis if he contest the pauperism of the petitioner. His omission to appear does not disentitle him to contest the suit. He need put forward his contention to the main claim only after the petition in forma pauperis is allowed and a suit is registered. In cases where the Court declines the prayer for permission to sue in forma pauperis, there would be a formal plaint only after conditions in 0.7 are satisfied. For example, in a case where the plaintiff is called upon to pay court fee, the plaint would be rejected under 0.5 R.11 if it is insufficiently stamped The language of Order V R.1 itself shows that issue of summons is contemplated only in a duly instituted suit. It, therefore, follows that the intention of the Legislature is that summons should be issued to the defendants after the suit is formally registered. 3. A somewhat similar question came up for decision before the Allahabad High Court in Gulab Chand v. Shankar Lal (ILR. 35 All. 163). It, therefore, follows that the intention of the Legislature is that summons should be issued to the defendants after the suit is formally registered. 3. A somewhat similar question came up for decision before the Allahabad High Court in Gulab Chand v. Shankar Lal (ILR. 35 All. 163). In that case along with the plaint in a suit filed against a minor and his brother, the appellant, a petition was filed for appointing the appellant as guardian of the minor After hearing his objections, some other person was appointed guardian. Thereafter the suit was registered and summons issued. Summons to the appellant returned unserved. The Court passed an order that since the appellant had appeared through counsel in the petition and there was a vakalath it was unnecessary to take out any further steps. The suit was accordingly decided ex parte. The appellant's application to set aside the ex parte decree was rejected by the trial court. The matter came up before the High Court. The High Court held that when notice was issued for appointment of the appellant as guardian, the suit itself had not been registered and the only matter pending was a miscellaneous petition relating to the appointment of guardian. The pleader appeared for the appellant only in that application. It was further held that it was the duty of the court to issue summons after the suit was registered. Even assuming that the appellant knew that the suit had been instituted he was entitled to receive a copy of the plaint and to be informed of the date fixed in order that he might be able to protect his rights. 4. The Calcutta High Court had occasion to consider the question whether summons was required in a case where the defendant appeared at the hearing of the application for leave to sue in forma pauperis, in Thakurdas Majhi v. Chand Mahji, AIR 1960 Cal. 538. A Division Bench of the High Court held that the suit as such came into existence only after the application was registered as a plaint in the suit. The Court observed: "It is true that, under Order XXXIII R.8, the pauper application on being granted is to be deemed to be the plaint of the pauper suit which is ultimately registered upon and because of the granting of the said pauper application. The Court observed: "It is true that, under Order XXXIII R.8, the pauper application on being granted is to be deemed to be the plaint of the pauper suit which is ultimately registered upon and because of the granting of the said pauper application. It may be true also that, for purposes of limitation and may be for certain other purposes too the suit must be deemed to have been filed when the original pauper application was presented in Court. The suit, however, actually came into existence, when the pauper application as the plaint in the suit was registered...". The Court also held that under 0.5 R.1 service of summons on the defendant is obligatory unless the case comes within the proviso to the rule. As in the Calcutta case the practice in the Courts in the State has always been to issue summons to the defendants after the plaint is registered as suit. That is a salutary practice which is in conformity with the provisions of the Code. Even in the present case the Court issued summons and set the second defendant ex parte only after declaring that there was due service of summons. The contention that no summons need be issued was raised only when the application to set aside ex parte came up for hearing. The provisions of the Code do not warrant the interpretation suggested by the petitioner. The Court therefore rightly set aside the ex parte decree passed against the second defendant-respondent. 5. On behalf of the petitioner it was then contended that the Court was justified in setting aside the decree as a whole. It was pointed out that the suit was against two persons. The first defendant having failed to appear has been set ex parte and a decree has been passed against him. No application has been filed by him for setting aside the ex parte decree and therefore the decree in so far as he is concerned, should have been allowed to stand. The respondent however relied on the proviso to 0.9, R.13. Under the said proviso, where the decree is of such nature that it cannot be set aside against the applicant alone it may be set aside as against other defendants as well. The respondent however relied on the proviso to 0.9, R.13. Under the said proviso, where the decree is of such nature that it cannot be set aside against the applicant alone it may be set aside as against other defendants as well. It is pointed out that the plaintiff's claim for damages is based on the plea that the vehicle was being driven in a rash and negligent manner by the first defendant. It is open to the second defendant to contend that the incident took place on account of the fault of the plaintiff himself and there was no rash and negligent act by the first defendant. If he succeeds in the plea the suit is liable to be dismissed as a whole. That means there is a likelihood of a conflict of decisions. The ex parte decree against the first defendant proceeds on the footing that there was rash and negligent act by the first defendant and if the Court is to hold in the trial at the instance of the second defendant that there was no rash and negligent act on the part of the first defendant, there would be conflict of findings on the same set of facts. Therefore, to avoid such conflict of decisions, it is necessary that the decree as against the first defendant is also set aside. That is what the Court below has done. No interference is, therefore, called for. The revision petition is accordingly dismissed. In the circumstances of the case the parties will bear their respective costs. Dismissed.