1988 Supreme(MP) 554

IN THE HIGH COURT OF MADHYA PRADESH
V.D. GYANI, A.G. QURESHI, JJ.
Anant Govind Dhodapkar – Appellant
Vs.
State of M.P. – Respondent
F.A. No. 90 of 1985 (I);
Decided on : 14-01-1988

Headnote:(1) Civil Procedure Code, 1908 – O. 33, R.1 and O.2, R.2 – permission to sue as indigent person – may be granted when such person has cause of action.

       (2) Civil Procedure Code, 1908 – O.6, R. 1, O.33 R.1, O.6 R.5, O.7 R.11 and O.2 R.2 – no necessary facts averred in plaint – plaint should not be rejected – opportunity to aver such facts should be provided.

        Short Note

       1. This first appeal arises out of the order dated 4 – 4 – 85, passed by the VIth Additional District Judge, Indore, in C.O.S. No. 16/848 thereby rejecting the plaint on the ground that it did not disclose any cause of action.

       2. Held: The suit was filed by the appellant as an indigent person and he was permitted to sue in 'forma – pauperis' vide order dated 20 – 11 – 84 passed by the trial Court. Perusal of trial Court's order – sheets reveal that the Govt. pleader had on 11 – 2 – 85 sought time to file written statement, as also his Vakalatnama and time was granted till 13 – 3 – 85, but the case could not be taken up on 13 – 3 – 85 as a result of said demise of a member of the bar. It was on 4 – 4 – 85 that G.P. moved an application for better particulars. It was during the course of hearing on this application for better particulars, that the trial Court on perusal of the plaint posed three questions to itself. One of such questions was whether the suit disclosed any cause of action. The Court came to the conclusion that for want of certain essential facts, the suit was not maintainable as it did not contain the necessary facts as required by Rule – 1 of Order 6 C.P.C. Consequently the plaint was rejected even before filing of the written statement.

       3. The appellant, contended that the very fact that he was permitted by the trial Court to sue in forma – pauperis' goes to show that he had a cause of action otherwise he would have not been permitted at all. Learned Govt. Advocate on the other hand submitted that the two stages are different, and tests and considerations differ. It was urged that the impugned order is proper and does not call for interference.

       4. One of the considerations while permitting anyone to sue as an indigent person is whether such a person has any cause of action and to that extent the appellant is right in his submission.

       5. The trial Court has observed that necessary facts were lacking, in that case the Court could have ordered the appellant to furnish such facts, rather than rejecting the plaint itself. It may also be noted that no written statement was filed, denying existence of, cause of action on accrual of Cause action to the plaintiff. The impugned order was passed when the Court was in fact hearing arguments on an application for better particulars. In such circumstances either the application could have been allowed or dismissed. Instead of doing so, what the trial Court did, was to persue the plaint and find out for itself if it disclosed any cause of action and ultimately rejected the plaint itself. At any rate the Court should have posted the appellant with such a cause of action. The expression cause of action means any cause of action, if the plaint discloses cause of action even in part, if cannot be rejected. While rejecting plaint for non – disclosure of cause of action, the Court had to look only to the allegations in the plaint and should assume them to be correct for the time being and then to ascertain whether those allegations disclose a cause of action or not. So viewed, it cannot be said that the plaint does not disclose any cause of action, more so when the written statement is yet to be filed.

       6. To our minds this course adopted by the trial Court was not proper. The Court should have confined itself to the consideration of the application for better particulars. As has been observed by the trial Court, in the very beginning of the impugned order, it was necessary to obtain explanation from the plaintiff on the questions framed and posed by Court of its consideration. In such an event, the plaintiff could have been ordered to furnish such explanatory facts as desired by the Court. But this has also not been done.

       Appeal allowed.