1. ' These are two applications by the applicant in this case. The first is an application under rule 15 of the former Chief Court Rules (0. S.) ' appealing against the order dated 28-3-1977 passed by the Additional Registrar of this Court refusing to allow the applicant to sue as a pauper. The second application is under section 151, C. P. C. Disclosing certain further facts and praying that the applicant be permitted to sue in forma pauper's. Since both the applications contain substantially the same prayer this order will dispose of both.
2. ' The facts are that the present applicant and the respondents except respondent No, 6 are the children of one Banda Ali and respondent No, 6 is the widow of the said Bande Ali who expired at Karachi on 20-101967. It is admitted that the applicant after the death of his father demanded his legal share from the property loft by the deceased from respondents 1 and 2 but they declined to accede to his request on the plea that the deceased had left no property and further relied upon a will dated 12-2-1960 left by the deceased. It is the case of the applicant that under wrong advice instead of filing a suit for administration of the property of the deceased and for accounts against the respondents, he filed a suit for declaration to the effect that the applicant was a legal heir of the deceased and was entitled to proportionate share in the properties and assets of the deceased (vide Suit No, 1265/71). It is further admitted that this suit was dismissed by the learned XVI, Civil Judge, Second Class, Karachi and the appeal taken to the District Court as well as to the High Court was dismissed.
3. ' The applicant then tiled the present suit under Order XXXIII, C. P. C. Seeking permission to sue as a pauper on 6-5-1976. The relief claimed in the suit is for grant of preliminary decree for administration, appointment of an administrator to realise the properties and assets of the deceased and to pay all his debts and also for rendition of accounts by the defendants. Along with the plaint the applicant has annexed a schedule wherein a number of properties have been shown which have been valued by him at Rs,' 87,66,620.
4. ' The matter of pauperism of the applicant came before the Additional objected to the grant of the application by submitting an application under Order X XXIII, rules 5 and 7 read with Order VII, rule 11, C. P. C. Raising the question of res judicata. Pursuant to the notice issued to the Advocates General a report was called for from the City Deputy Collector, Karachi, who certified that the applicant had no ostensible assets.
5. ' The applicant appeared himself in evidence in support of his claim of pauperism and no evidence was produced by the respondents. The applicant in his statement on oath once again admitted the fact of his having filed Suit No, 1265/71 in the Court of Civil Judge and the fact that the suit and the appeal filed by him were dismissed up to the High Court level. In crossexamination he was confronted with the copies of the plaint and written statement in the previous suit filed by him as well as the judgment and decree passed by the Civil Judge on 20-5-1974 in the said suit. He also admitted having filed an appeal which was dismissed by the VI Additional District Judge, Karachi, of which copy was produced through him. He was also confronted with the revision application in the High Court which was admittedly dismissed by a learned Single Judge by his order dated 194- 1976. He further admitted that no petition for special leave to appeal was presented against the aforesaid decision in the revision application to the Supreme Court.
6. ' The learned Additional Registrar came to the conclusion that in view of the specific finding given in the previous suit which was maintained up to the High Court to the effect that the deceased had left no property to be inherited by his heirs, the present suit was barred by res judicata and, therefore, the application for permission to sue as a pauper revealed no cause of action. On this view of the matter he refused to allow the applicant to sue as a pauper under Order XXXIH, rules 5 and 7 read with Order VII, rule 11 and section 11, C. P. C. And dismissed the application by his impugned order.
7. ' The applicant has appeared in person and has in his short submission only appealed for mercy and justice. He submitted that the respondent No, 6 is his step-mother and the rest of the respondents are the children of his father from the second marriage and as such they have conspired to deprive him of his lawful share in the estate of the deceased, by fabricating false documents of gift and will. The applicant has placed on record the photostat copy of the last will and testament of his father Banda All which purports to recite and declare that the various businesses mentioned therein were owned and possessed by his various sons who are respondents and his wife respondent No,
6. The will inter (Ilia stipulates to bequeath all and each of his estates and property whatsoever to his wife respondent No, 6 and to his sons in specified shares. The deceased has further expressed a wish to his sons that if they can afford they may contribute inter se, as they may agree, and pay to Rehmat wife of the present applicant such total sum as they may in their discretion determine not exceeding Rs, 500 per month for maintenance of herself and of her children during their minority, or entil their marriage subject to the condition that in ease the applicant or his wife or children or any of them were to impeach the will through any action according to law, then such beneficiary shall absolutely forfeit the benefit of his wish as stated above. The perusal of the judgment dated 20.5-1974 passed by the XVI Civil Judge Third Class, Karachi, shows that the previous suit filed by the applicant was for declaration, that he is legal heir of the deceased and LS entitled to proportionate glare in the properties and seats of the deceased. On the pleadings of the parties the Court framed several issues in which issue No, 5 was as under :- "Whether the deceased Bande Ali left any property or assets ?"
8. ' The learned Civil Judge, while disposing of this issue came to a finding in negative and observed as under :- "Tne plaintiff was legally required to prove the existence of the property to which he had any legal character or any right as to any property. He has failed to produce any evidence in this regard, whereas the defendants have produced documentary evidence as Batts. 6, 11, 13, 14, t 5, 16, 17, 18, 19 and 20 in support of their above contention and have been admitted by the plaintiffe again observed : "1 have already held in Issue No, 1 that the plaintiff has failed to prove that Bande Ali had left any properties or assets." he learned VI Additional District Judge affirmed this finding in his udgment dated 9-10-1974 and observed as under "In order to see whether the deceased had left any properties and assets X have examined the entire evidence of the parties produced in the lower Court. The appellant has examined himself and has produced no documentary or oral evidence worth the name to prove that the deceased left any properties. Inc respondents, on the other band, produced copious documentary evioence of reliable character to prove that the deceased left no properties in his name at the time of his death." ' r. Justice I. Mahrnud In dismissing the revision application by his order ated 19-1-1976 also affirmed the findings of the two Courts below that the laintiff (applicant) has failed to discharge the burden of proving the xistence of property belonging to the deceased.
9. ' In his memo of appeal under rule 15 of the Sind Chief Court Rules S.) applicant urged the following grounds :
(1) That the impugned order of the learned Additional Registrar is without jurisdiction as under rule t 4(40) Sind Chief Court Rules (0 S) the Additional Registrar was not competent to dispose of an application under Order VII, rule 11, C. P. C. As such application had to be decided by the Court.
(2) That the present suit is not hit by the rule of res judicata for the reason that the Court which tried the previous suit, namely, the Civil Judge, third Class, was not competent to try the present suit and consequently the bar contained in section 11 is not attracted in the present case."
10. ' As to the first ground a perusal of the relevant Rule of the Sind Chief urt Rules on the original side, namely, rule 14, shows that it enumerates plicetions under various provisions of the Civil Procedure Code and other actments whetter contested or uncontested which the Registrar (0. S.) ismpetent to dispose of. Clause (40) relates to applications for leave to sue forma pauperts and investigation as to the pauperism of petitioner for ye to sue or to appeal as a pauper. It was contended by Mr. J.
11. H. Himtoola learned counsel appearing for the respondents that the ditional Registrar, was, therefore, competent to dispose of all questions arising in connection with the disposal of the pauper application filed by the applicant. Under rule 5, Order XXXIII, C. P. C. The Court is enjoined to reject an application for permission to sue as a pauper Inter alia where the applicant's allegations do not show a cause of action. The counsel,A therefore, argued that if a claim is barred by limitation or res judlcata, the applicant would not have a cause of action and consequently his application would be liable to the rejected under rule 5. Sub-rule (2) of rule 7 of Order XXXIII, also empowers the Court after hearing the evidence adduced by the parties and their arguments to entertain any objection to the grant of the application on the basis of the prohibitions specified in rule 5.
12. ' In view of these clear provisions there seems to be no merit in the contention that the objection on the ground of res judicata could only be urged before and decided by the Court. The application submitted by the respondents before the Additional Registrar, no doubt, referred in its heading to Order VII, rule 11, but Order XXXIII, rule 5 is also mentioned at the top of the application and in any case it is the substance of the application which is material for the present purposes. It was open to the respondents to show that the allegations made by the applicant do not disclose a cause of action, and if the suit was hit by the bar of res judicata it is obvious that there will be no subsisting cause of action. In Yousif Abid v. Secretary of State (1) a petition for permission to sue in forma pauperis was brought in respect of a claim in damages for tort committed by soldiers of the King while quelling civil disturbances under orders of the civil authorities. In exercise of his delegated powers under the rules the Registrar dismissed the application for pauperism on the ground that the petition did not disclose a cause of action against the Secretary of State for Indiai-n-Council.
13. The Court after reviewing the legal position came to hold that no suit was competent for damages on account of tort committed by the officers of the Crown, and upon this view held that even if the allegations made in the petition are proved, the applicant will have no cause of action. On this view the learned Additional Judicial Commissioner maintained the order of the Registrar as having been validly passed under Order XXXIII, rule 5(d), C. P. C. That res judlcata and the bar of limitation have been accepted as grounds for a rejection of a pauperism application is supported by various decisions. Reference may be made to cases reported in AIR 1936 Pesh. 39, AIR 1937 Oudh 481, AIR 1919 Lath. 4 and I L R 19 Mad.
197. In these cases the view was taken that an applicant has to establish a subsisting cause of action for being entitled to leave to sue as a pauper. ' In Bhimo v. Trinath (2), it was held that when the document referred to in the plaint prima fade shows that the claim is barred by res judlcata, the rejection of the application to sue in forma pauperis under Order XXXIII, rule 5(d), C. P. C. Would be valid.
14. ' In view of the aforesaid discussion it is clear that if the Court comes to the conclusion that the claim of the applicant is barred by res judicata, it would be competent for the Court or for that matter for the Additional Registrar, in exercise of his delegated power under the Rules to reject the application for pauperism on the ground that the application does not show a cause of action. In the foregoing part of this order I have referred to the specific finding arrived at by the trial Court and affirmed in appeal and revision that the deceased had left no property at the time of his death. It, therefore, follows that a suit for administration of the non-existent estate of the deceased would be a sheer exercise in futility. The existence of some tangible
(1) Al R 1936 Sind 130 (2) A 1 R 1963 Orrisa 223 ' properties and assets is obviously an important part of the cause of action for a suit for administration of the estate of the deceased. But this issue having been validly decided by a competent Court is binding on the applicant and cannot be re-agitated in the present suit. The first contention urged in the petition has, therefore no merit.
15. ' However, as stated earlier, it is contended that the decision given by the Civil Judge on the aforesaid issue will not operate as res judkata as before invoking the bar contained in section 11 the respondents were required to show that the finding was given by a Court which was competent to entertain the present suit. There is no doubt that in terms section 11 provides for application of the rule of res judicata contained therein the fulfilment of the following conditions :
(1) The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually or constructively in the former suit.
(2) The former suit must have been a suit between the same parties or between the parties under whom they or any one of them claim.
(3) The parties as aforesaid must have litigated under the same title in the former suit.
(4) The Court which decided the former suit must have been a Court competent to try the subsequent suit or the suit in which such issue is subsequently raised.
(5) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit.
16. ' Now there can be no controversy that except for condition No, 4, stated above, the rest of the conditions are fulfilled in the present case. The contention seems to be that the value of the present suit being over Rs, 87 lacs, the present suit is beyond the pecuniary jurisdiction of the Court of Civil Judge, Third Class, and, therefore, it follows that the latter Court was not competent to try the present suit. Mr. Rabimtoola rightly contended that allowing a party by his own act of giving a higher value for the purposes of jurisdiction to escape the bar contained in the rule of res judlcata, would be to put premium on subterfuge. He contended that there is authority for the view that a plaintiff cannot be allowed to split his cause of action or enhance the value thereof and escape the objection of res judkata. The Bombay High Court in Yeshwant Bala v. Baba! (1), held that the plaintiff cannot evade the provisions of section 11 by binding several causes of action against the same defendant in a subsequent suit and institute it in a Court of superior jurisdiction ; so also he cannot avoid section 1 I by splitting up the cause of action of the previous suit, so as to give jurisdiction to an inferior Court. It looks extremely anomalous that the plaintiff should first invoke the jurisdiction of an inferior Court for the redress of his cause of action and having failed therein should now be allowed to re-agitate that matter by merely enhancing the value of the same subject-matter and thereby defeating the rule of res judkata. However, in my view, the Code of Civil Procedure has taken care to preserve the rule against double jeopardy and provides a bar in Order II, rule 2, against successive actions in respect of claims arising out of the same cause of action. The cause of action in th previous suit was the deprivation of the applicant of his lawful share in the estate of the deceased by the respondents and, therefore, it was incumbent upon him to seek a decree for administration of the estate of the deceased is
(1) AIR 1945 Born. 67 ' the previous suit. The cause of action relied upon in the present suit, io my view, is not different from the one upon which the previous suit was brought. This suit is, therefore, clearly barred under Order II, rule 2, C. P. C.
17. ' For the aforesaid reasons I have come to the conclusion that the. Additional Registrar rightly held that the applicant has shown no/D subsisting cause of action and dismissed his application under Order XXXIH,I rule 5(d), C. P. C. In the result both these applications are dismissed.
18. ' It will, however, be open to the applicant to pay proper court-fees if he wishes to file a regular suit on the cause of action urged in the application.