BOMBAY BELTING CO Vs. SEW PUJAN SINGH

JUDGEMENT

(1.) This Rule raises a short but interesting point.

(2.) The facts giving rise to this Rule may be stated briefly. The plaintiff, a dismissed driver made an application to sue as a 'poor person' in the Presidency Small Cause Court, Calcutta, his employer for recovery of damages for wrongful dismissal. His claim was for a decree for Rs. 1870/-on that ground. The special feature about this case is that he had first made an application to sue as poor person for this claim but later on he withdrew that application. The learned Chief Judge who made that order on the 22nd April 1961 recorded in the order-sheet only this order in this form: "Lawyers for the parties present. Application is withdrawn." No leave or permission of the Court was obtained by the plaintiff to bring either a fresh application to sue as a poor person or to bring a suit otherwise. Nevertheless subsequently the driver who is the plaintiff opposite party in this Rule made another application to sue as a poor person before the Presidency Small Cause Court, Calcutta, in the same year 1961. This application was allowed by the Presidency Small Cause Court. Finally, on merits and on hearing evidence the learned trial Judge decreed the suit in favour of the opposite party for the sum of Rs. 1767/-. The petitioner employer who was the defendant in the suit then made an application under Section 38 of the Presidency Small Cause Courts Act against that decision. The point urged by the employer petitioner is that no second application or suit was permissible when the first application was withdrawn without express leave or permission of the Court to bring in a second application or a second suit on the same cause of action. The Full Bench of the Small Cause Court overruled the petitioner's objection and dismissed his application tinder Section 38 of the Presidency Small Cause Courts Act upholding the finding of the trial Judge.

(3.) Now the only point urged before me is that this suit could not be entertained by the Small Cause Court when the first application to sue as a poor person had been withdrawn without express leave or permission of the Court to bring a second application on the same cause of action. Mr. Mukherjee for the petitioner formulates his objection in the following terms: The previous application for permission to sue as a poor person was really a suit and when the plaintiff withdrew the suit without taking the Court's permission to file a fresh application on the same cause of action, he must be held to be barred under Order 23, Rule 1(3) of the Code of Civil Procedure, which is in pari materia with Rule 1(3) of Chapter XXIII of the Rules of Practice and Procedure under Section 9 of the Presidency Small Cause Courts Act and which provides inter alia as follows: