Sari Dutt Prasad and another vs Shib Kumar Jha

Mohammad Noor, J.—By this revisional application this Court is asked to set aside an order of the Munsif of Madhipura allowing the opposite party to sue in forma pauperis. The plaintiff opposite party is practising Mokhtar at Madhipura. He was a bailor fo,r some accused persons who did not appear on the date fixed. The Sub-divisional Officer who is defendant 1 in the suit forfeited to the extent of Rs. 50 the bail bond which was for Rs. 200. The opposite party did not pay the forfeited amount. Later on in January 1933, he applied for renewal of his certificate of practice as a Mukhtar and according to the usual practice the old certificate together with the stamp paper for renewal was filed before the Sub-divisional Officer who was to forward it to the District Judge. It is alleged by the plaintiff that the Sub-divisional Officer withheld the application for renewal in order to put pressure upon him to pay up Rs. 50, the forfeited amount of the surety. The plaintiff''s certificate of practice was not renewed till about the middle of May. He has brought this suit as a pauper for damages against defendant 1 who was the Sub-divisional Officer of Madhipura and also against the Secretary of State (defendant 2) who is the employer of defendant 1.

The application to sue as pauper was resisted by the defendants on two grounds: first, that the plaintiff was not a pauper and secondly, that the plaint did not disclose any cause of action. The learned Munsif has overruled the contentions of the defendants. The defendants have moved this Court and obtained this Rule. So far as the first point is concerned, the learned Munsif has found on evidence as a matter of fact that the plaintiff was a pauper. I do not find any irregularity or illegality in this finding.

As to the second point that the plaintiff has no cause of action, it was contended that under the Judicial Officers Protection Act the alleged act of defendant 1 was protected and therefore the suit of the plaintiff could not proceed. There is no doubt that the judgment of the learned Munsif on this point is not quite satisfactory. A question was raised before him whether the duty of Sub-divisional Officer in forwarding the application for renewal of certificate of practice is judicial or executive. The plaintiff wanted to cite authorities to show that it is not judicial. The learned Munsif without properly discussing the question has held that it is judicial. I do not wish to express any opinion on that point. It is a matter which will have to be decided in the suit. The present is not the stage for its determination. But as the learned Munsif has held or rather assumed this point in favour of the petitioners, they have not been prejudiced. Then the learned Munsif has rightly pointed out that the Judicial Officers'' Protection Act protects acts done in good faith on a belief that the Officer had jurisdiction to do or order the act complained of. But proceeding further he says that so far as this particular case was concerned, there was nothing before him to show that the act was done in good faith and he has commented on the fact that defendant 1 did not offer his evidence and that if later on it appeared that defendant 1 acted in good faith, the plaintiff could be disappeared. It is obvious that these observations of the Munsif are not quite to the point. The question of good faith or otherwise did not arise at that stage. The only point to be decided was whether the plaint disclosed any cause of action. For this purpose evidence of the defendant was not needed. It is to be decided on the allegation of facts in the plaint and if necessary, after examining the plaintiff. Secondly, once the application is admitted, the plaintiff can only be disappeared under O. 33, R. 9, on the grounds mentioned therein. If during the trial of the suit it appears to the Court that the plaintiff has got no cause of action, the plaintiff''s suit will be dismissed not that the plaintiff will be disappeared. Therefore as I have said the learned Munsif''s decision in this respect is not satisfactory; but whether the plaint discloses a cause of action can be decided here without having recourse to a remand. The allegation of the plaintiff in para, 11, is that defendant 1 deliberately did the illegal act complained of. In his evidence also he has stated facts which disclose a cause of action. It is not at this stage for the Court to decide what the ultimate decision in the suit will be. Though the decision of the learned Munsif is not satisfactory on the point of cause of action, I am satisfied that that requirement of law is complied with by the plaint as it stands coupled with the evidence of the plaintiff. I sec no merits in this application. It is rejected with costs. Hearing fee one gold mohur.