1. The third defendant in a suit for compensation is the petitioner herein. In the suit, a compensation for Rs.10 lakh was claimed by the plaintiffs, who are the legal representative of the deceased Mahesh, who died on 31/3/2010 by electrocution. The deceased was working as a contract worker under KSEB. It is stated that the plaintiffs have also filed WCC No.67/2011, before Workmen's Compensation Commissioner, evidenced by Ext.P2, claiming a compensation for Rs.12 lakh, based on the same cause of action. The petitioner is the third respondent therein.

2. The learned counsel for the petitioner submits that since WCC No.67/2011 filed by the plaintiffs in the suit is now pending before the Deputy Labour Commissioner-Kollam, the plaintiffs cannot prosecute the suit.

3. The fact that in respect of the same cause of action a suit is pending before the Sub Court and at the same time, WCC No.67/2011 is pending before the Workmen's Compensation Commissioner (Deputy Labour Commissioner) is not in dispute. There is no dispute regarding the fact that plaintiffs have to elect one of them and cannot have both together. Sec.3(5) of the Workmen's Compensation Act, 1923 reads:

“(5) Nothing herein contained shall be deemed to confer any right to compensation on a workman in respect of any injury if he has instituted in a Civil Court a suit for damages in respect of the injury against the employer or any other person; and no suit for damages shall be maintainable by a workman in any court of law in respect of any injury –

(a) if he has instituted a claim to compensation in respect of the injury before a Commissioner ; or

(b) if an agreement has been come to between the workman and his employer providing for the payment of compensation in respect of the injury in accordance with the provisions of this Act.”

4. Therefore, the next question to be considered is whether plaintiffs had filed the suit earlier or whether WCC was filed earlier. If it is found that the suit had already been filed and it was pending the plaintiffs have to opt to have the suit prosecuted and in that event the WCC No.67/2011 cannot be proceeded with.

5. The learned counsel for the petitioner herein relies upon the decision in The C.K.M. Union Ltd., v. M.C. John (1950 KLT 205) in support of his submission that the suit cannot be prosecuted. There it was held:

“An application to sue in forma pauperis can be deemed to be a plaint in the suit only when it is granted or when it is directed by the order of court that the application be filed as a plaint on the applicant paying the requisite court fee within such time as the court may allow.”

There it was also held:

“Until then, in the eye of the law, no suit should be deemed to have been duly instituted.”

But in the very same decision it was held by the Division Bench:

“No doubt when by operation of law, the application to sue in forma pauperis becomes converted into a suit the suit is deemed to have been filed not on the date when the application to sue in forma pauperis becomes converted into the suit but from the date on which the application was filed. This is so by virtue of the provisions of the Limitation Act.”

6. In the case cited supra, in fact the plaintiffs filed an application before the District Court, Mavelikkara for permission to sue in forma pauperis, but later on he withdrew that application with the leave of the court and filed an application under the Workmen's Compensation Act before the Commissioner. Therefore, it is clear that in that case the application under Order 33 Rule 1 was not later converted into a suit. But so far as the case on hand is concerned, it is the admitted fact that I.O.P. 4/2011 filed under Order 33 Rule 3 of CPC, was subsequently converted into a suit as O.S. 93/2013 and therefore, it is a case, as has been held by the Division Bench in the aforesaid case, the suit should be deemed to have been filed on the date on which the application was filed. OP was admittedly filed