MARTIBEN THAVRA LAKHMA Vs. KISAN OIL MILL

JUDGEMENT

(1.) In these five petitions, common questions of law are involved and therefore at the request of the learned counsels, of both sides they are heard and disposed of by this common judgment.

(2.) . These five revision applications are filed by the petitioners, who were the applicants before the trial court seeking permission to file their respective suits as indigent persons. The claim of the petitioners in all the five petitions arose out of an incident which occurred on the night of 17th April, 1980, whereby the compound wall of the respondent Kishan Oil Mill collapsed resulting into the death of three persons and physical injuries to other two persons. The five applications for permission to sue as indigent persons were made by the heirs and legal representatives of the deceased three persons and by the two injured persons. The learned trial judge after recording the evidence of the applicants, came to the conclusion that there was no merit in the claims of the applicants inasmuch as the evidence did not disclose any cause of action for filing the suit. The learned trial judge therefore rejected all the five applications under Order 33, Rule 7 (3) read with Rule 5 (d) of the Code of Civil Procedure.

(3.) . Mr. M. S. Shah appearing for Mr. K. J. Vora for the petitioners in all the five petitions has urged that the learned trial judge was not justified in rejecting the applications because according to him, it was not open to the learned trial judge to decide the question of negligence for the purpose of dealing with the applications for permission to sue as indigent persons. According to Mr. M. S. Shah, at this stage the trial court has only to go into two questions, viz. (1) whether the applicants are really indigent persons, and (2) whether the facts stated and averments made in the plaint show a cause of action. According to him, at this stage, the court must restrict itself only to the question whether the facts disclose a cause of action. He has further submitted that the averments made in the applications and the evidence led before the trial court does disclose a clear cause of action, viz. the collapse of the compound wall due to the negligence of the defendant. . Mr. S. D. Shah, the learned counsel for the respondent Kishan Oil Mill in all the five petitions has urged that the learned trial judge was right in holding that on merits the applicants' claim was not sustainable and therefore the learned trial judge was justified in rejecting the applications for permission to sue as indigent persons. Mr. S. D. Shah has relied on a decision of Bombay High Court reported in AIR, 1932, Bombay, 584, wherein it is held that -