Jagat Ram Aryan vs Jammu and Kashmir State and Others

Jaswant Singh, J.—This Is an application by Jagat Ram Aryan, a member of Legislative Assembly of the State, for permission to sue in

forma pauperis for recovery of Rs. 1,00,00,000 (Rupees one crore). The amount is claimed as special damages from the respondents jointly or

severally for the wrongs alleged to have been done by them as joint tort feasors to the petitioner and the members of his family. In the application

which has been filed by him on 12-2-1969, it has been alleged by the petitioner that he was appointed as Harijan Special Officer in the permanent

cadre and grade of 200-20-300 vide Cabinet Order No. 35-C/48 dated 15-4-1948, that respondents 2, 3 and 4 conspired to establish an

independent State at the head of the Sub continent of India, and used the whole Government machinery in furtherance of that aim, that they

designed various tactics and stratagems to achieve that end, that they also tried to induce him to support their machinations against India, that on his

failure to fall in line with their machinations to betray the country by straying from the right course they conspired against him in 1950 and

suspended him without any written order or charge, that after his suspension a series of cases were trumped up against him by the respondents

with the ulterior motive of annihilating him and his family members thus subjecting them to nervous, mental and physical torture and economic

distress, that he was hurled from one jail to Anr. and from one Court to Anr. , that his property was confiscated under verbal orders of

respondents 2, 3 and 4, that this process of prosecution and persecution continued from 1950 to September, 1963, that on his acquittal in the last

case he applied to the Chief Minister for his reinstatement with all the increments etc. that had fallen due to him, that on 3-7-1967 he was informed

by the Deputy Secretary to Government, General Department, that the Government had not been able to find sufficient reasons to open his case,

that thereafter he approached the Chief Minister in appeal against the decision of the Government, that on 27-2-1968 the Chief Minister informed

him vide his Note 1692-CS/68 that he could not but uphold the decision taken in the case on 3-7-1967, and that in June, 1968 he served the

respondents with notice under1 Section 80, Civil P.C. claiming one crore of rupees as special damages. In Paragraph 8 of the application the

petitioner has laid a claim for rupees one crore as special damages from the respondents as joint tort feasers for the pecuniary loss of his salary and

mental, nervous and physical torture to which he and his family members have been subjected by them. In paragraph 9 of his application the

petitioner has stated that he has not got the means to pay the court-fee of Rupees 6146 required to be paid on his plaint.

A notice with regard to this application was issued to the respondents, first three of whom have contested the application. Respondent No. 1 i.e.

the State of Jammu and Kashmir, has averred that the petitioner has deliberately omitted to give details of the order of his appointment and the

terms and conditions of his service, that the Government created two temporary posts of Special Officers, for Harijans, that the petitioner was

appointed against one of the said posts, that on the: petitioner's own showing he ceased to function under orders of the Revenue Minister from

1950, that in view of these facts the petitioner has no cause of action for the present suit, that the petitioner being a temporary employee on. a

temporary post and having ceased to function from 1950 is not entitled to claim the arrears of pay or any declaration, that the temporary employee

in 1950 could be disbanded and his discharge could not be held illegal nor could it create any right in him for declaration to the effect that he be

deemed to be a permanent employee, and entitled to pay thereof after the date of his discharge, that the suit for arrears of salary and declaration is

clearly time barred and the petition does not disclose any cause of action. It has been averred by respondent No. 1 in para No. 6 of its objections

that the petitioner has not disclosed as to how he had a right to claim rupees one crore as damages.

Respondents Nos. 2 and 3 have inter alia averred that the petitioner is possessed of sufficient means and property to pay the court-fee and

cannot as such be treated as pauper in the eye of law, that the petitioner's claim for damages is prima facie time barred and cannot be allowed after

the expiry of one year.

The parties were given an opportunity of proving the averments made by them. Whereas the petitioner has produced Prem Nath, Ghulam

Mustafa, Harl Lal besides appearing as his own witness, the respondents have not led any evidence in rebuttal.

Prem Nath who is an Agriculture and Horticulture overseer has stated that he has seen the land belonging to the petitioner, that the said land is

of a very inferior quality, that the value of the land is approximately Rs. 100 per kanal and that the petitioner's family consists of about 20 members

who are all dependent upon him. In cross-examination the witness has stated that he does not know the extent of the land of the petitioner, that one

of the petitioner's son who is employed in the Post Office is getting a salary of Rs. 75 per mensem, that his other son is a school teacher drawing a

salary of Rs. 100 P.M. and his third son is an employee in the Police Department about whose salary he is not aware.

Ghulam Mustafa, a member of the Legislative Assembly, has stated that the petitioner owns an old house in village Matta, that the value of the

said house is about Rs. 2500, that the petitioner owns 40 to 50 kanals of land, that the land is of inferior quality, its value not being more than Rs.

150 per kanal, and that the family of the petitioner consists of 20 members who are all dependent upon him. In cross-examination the witness has

stated that a member of the Legislative Assembly gets Rs. 400 as monthly allowance besides Rs. 75 as conveyance allowance. The witness has

also admitted that the petitioner owns two bullocks worth about Rs. 300.

Hari Lal has stated that he has been the Principal of Higher Secondary School, Kishtwar, that he has seen the house of the petitioner which is of

old type, that the value of the house is about Rs. 2,000, that the value of the petitioner's land is Rs. 100 per kanal and that the family of the

petitioner consists of 15-20 members, all of whom are dependent on the petitioner. In cross-examination the witness has stated that the petitioner

has two bullocks the value of which is about Rs. 200.

Appearing as his own witness the petitioner has stated that he has only two kanals of land which he got as result of the operation of the Big

Landed Estates Abolition Act, besides 32 kanals of land which he inherited from his father, that his three sons are coparceners in the said land and

ancestral house, that on demand of their shares in the property by his sons he executed a gift-deed dated 14th January, 1969 in their favour, that

the market value of his land was Rs. 50 per kanal, that he is getting an honorarium of Rs. 475 per mensem as member of the Legislative Assembly

and that he has Rs. 8,000 to pay by way of debt. In cross-examination the petitioner has admitted that according to the version of the Government

he was removed from service in 1950 but he did not get any written order to that effect, that the first application for restoration was submitted by

him in 1950, that the second application was submitted by him in 1955 and the last application was submitted in 1964. He has further admitted that

his claim for damages is under tort, that out of the sum claimed by him Rs. 9,95,0000 is on account of mental torture suffered by himself and the

members of his family, and that he has not got the means to pay the court-fee of Rs. 61462.

Appearing on behalf of respondent No. 1 Mr. Amar Chand Additional Advocate General, has not seriously dispute ed that the petitioner is not

able to pay the court-fee required on his claim. He has, however, referred to Order 33, Rule 5(d) of the Civil P.C. and has contended that the

application for permission to sue in forma pauperis cannot be granted in view of the fact that the petitioner has no subsisting cause of action

capable of enforcement in Court and not barred by the law of limitation.

In the course of the written arguments submitted by the petitioner it has been inter alia contended that he does not possess the means to pay

the requisite court-fee, that his suit is governed by Article 119 of the Limitation Act and not by Articles 22 and 23 thereof and that since the last

order disallowing his claim was passed by the Government on 28th February, 1968 his claim is within time.

So far as the capacity of the petitioner to pay the court-fee required on his claim is concerned I have no doubt in view of the evidence adduced

by him that he is not in a position to pay the court-fee amounting to Rs. 61462.

It cannot be and it is not, however, denied that the Court has power to reject an application for permission to sue in forma pauperis under

Order 33, Rule 5(d) of the CPC if it does not show a cause of action. Now it is well settled that the words 'cause of action' as used in the

aforesaid provision of law imply a good and subsisting cause of action and the Court can reject the application for permission to sue in forma

pauperis where the claim is prima facie barred by limitation or by any other law. Reference in this connection may be made to the decision

reported in AIR 1915 Mad 398 (2), AIR 1941 Nag 330, AIR 1932 Rang 107 (FB), AIR 1934 Rang 111 and Kanthaswami Pillai Vs. Sivarama

Pillai and Others, .

Let me now see whether the application discloses a subsisting cause of action or whether the claim, is prima facie barred by limitation as

contended by Mr. Amar Chand, Assuming without holding that the petitioner was appointed to a permanent post and was only suspended and not

removed from service in 1950 A.D. still as according to his own showing he is now 62 years of age he could not have continued in service as of

right after 55 years of age which, was attained by him in 1962. The suit for loss or arrears of salary cannot, therefore, be held to be within time in

view of Article 73 of the State Limitation Act which provides a period of three years for a suit for wages not expressly provided for by the first

schedule. Now there can be no manner of doubt that wages include salary as well. In Punjab Province v. Tara Chand AIR 1947 FC 23 it was

held that a suit for arrears of salary was governed by Article 102 of the Indian Limitation Act 1908 (which corresponds to Article 73 of the State

Limitation Act, Act No. 9 of 1955) and not by Article 120 of the Indian Limitation Act 1908 (which corresponds to Article 119 of the State

Limitation Act 1955). This decision of the Federal Court was approved by their Lordships of the Supreme Court in Shri Madhav Laxman

Vaikunthe Vs. The State of Mysore, , and has also been recently followed by the Allahabad High Court in Union of India (UOI) Vs. Hari Om, in

view of these rulings the claim of the petitioner for loss or arrears of salary cannot be held to be within time,

The claim for damages for personal injury and malicious prosecution is also time barred. Such a claim Is governed by Articles 22 and 23 of the

Limitation Act which prescribe only a period of one year for the suit. In Bk. Ghulam Mohd v. Shri Ghulam Mohd. Sadiq AIR 1968 J & K 98, it

was held that when tort has been committed by two or more persons, an allegation of prior conspiracy to commit the tort adds nothing and the

prior agreement merges in the tort. It was further held in this decision that a suit for malicious prosecution or for damages for false imprisonment

has to be brought within a period of one year and no distinction can be made in respect of the number of persons by whom the wrong may have

been perpetrated. It was further held there that if a tort or torts are committed by several persons acting in common conspiracy the charge of

conspiracy merges into the tortious act and the rule of one year limitation would apply as provided in Articles 19, 22, 24 and 25 of the Limitation

Act. It would be advantageous at this stage to refer to the following observation made in the aforesaid decision by Hon'ble Anant Singh J.

A conspiracy to injure by itself is not actionable in tort, Unless some injury is caused resulting in damage and when any injury resulting in damages

accrues, the conspiracy merges into tortious act or acts. The gist of tort being damage and when in pursuance of a conspiracy, individual torts are

committed by the defendants action for damages in tort would lie within one year from the date or dates of such tort or torts, and not from the date

of the conspiracy. For, in such cases, the conspiracy merges into tort or torts.

Now in the present case on the petitioner's own showing the process of his persecution and prosecution lasted for thirteen years with effect from

1950 and the last criminal case in which he was involved was decided in his favour in September 1963. The present claim which has been

preferred in February, 1969 is thus manifestly barred by time.

There is also no substance in the contention of the petitioner that since the last communication disallowing the claim was received by him from

Chief Minister on 28th February, 1968 his claim should be treated to be within time. This line of argument cannot prevail in view of the clear

language of Article 23 of the Limitation Act which lays down that terminus a quo for a suit governed by that Article would begin from the date the

plaintiff is acquitted or prosecution is otherwise terminated. A more or less similar contention was raised in AIR 1934 Rang 111 (Supra) but was

repelled. It would be advantageous to refer in this connection to the following observations made therein by Leach, J.:

This leads me to the question whether the petition which has been filed in this case discloses a cause of action which still subsists...

In paragraph 34 the petitioner pleads that by an order dated the 15th December, 1932 he was ""finally informed that his case has been fully

considered,"" and he interprets this as meaning that the local Government finally decided on that date that his career in the Government service

should be terminated with effect from the 1st October 1922. There is no force in this argument The cause of action, if any must date from the day

when the petitioner was dismissed from the Government Service. That date the petitioner himself gives in his petition as the 19th September 1922,

although he served upto the 30th September 1922. The case being governed by Article 115 of the Limitation Act, it is obvious from the petition

itself that the alleged cause of action has been long time barred. No purpose would be served by numbering the petition as a plaint and then dealing

with the question of limitation.

The foregoing discussion leads me to the conclusion that the petitioner has no subsisting cause of action.

For the foregoing reasons, the application for permission to sue in forma pauperis is rejected but without any order as to costs.