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J. Miscellaneous Application No. 3 of 1975, decided on 14th March 1977.

‑‑ O. XXXIII, r. 1‑Suit by pauper‑Allegation that applicant failed to disclose all assets owned by him not established ‑ Application for permission to sue in forma pauperis cannot be rejected in circumstances of case.

Sailkupa Co‑operative .Multipurpose Society Ltd. v. Jehangir P i. D 1957 Dacca 374 and Standard Vacuum Oil Company v. Anwarul Haque P L D 1959 Lab. 855 ref.

----S. 12 read with Ss. 9 8t 31(2)‑Person not party to proceedings --Held, not bound by award but at liberty to file a suit‑Person although real owner of property not treated as interested person by service of notice‑Cannot be deprived of his remedy at law without being afforded opportunity to present his claim‑Suit by such person claiming compensation‑Held, not barred.

The bare reading of section 12 of the Land Acquisition Act clearly shows that finality attached to the award is so far as the parties before the Collector or District Judge are concerned but a person who is not a party to the proceed ings would obviously be at liberty to file a suit as he would not be bound by the award. The section refers to an interested person whether he has appeared before the Collector or not, to be bound by the award in relation to the speci fied matters. Section 9 provides for the notice for claims to compensation to interested persons and apparently therefore, only such persons are parties to the award who have been recognized as prima facie interested persons by the service of notice. It is quite obvious therefore, that a person who may be the real owner of the property but who was not treated as interested person by the service of notice, cannot be deprived of his remedy at law without being afforded an opportunity to present his claim.

The provisions of section 12 would be attracted only in respect of persons who are thus impleaded as parties to the proceedings.

There appears to be no bar to a suit by a person claiming to be entitled to the compensation as against the persons actually receiving the same, as such suits are clearly saved from the barring provisions of the Land Acquisition Act by the last proviso to section 31(2).

Gul Mir Khan v. Habibullah Khan 160 1 C 1010 ref.

-----R. 15‑Complicated questions of law‑Not required to be decided in application under r. 15‑Such questions must be left to be decided in suit.‑[Question of law].

Kohinoor Industries Ltd. (United Chemicals), Lahore v. Abdul Majid Butt 1970 S C M R 77 ref.

G. A. Brohi for Applicant. Mohammad Shartf for Respondents Nos. 1 to 6.

A. Sattar Shaikh, Assistant Advocate‑General for the State.

This is an application under rule 15, Sind Chief Court Rules (O. S.) appealing against the decision of the Additional Registrar of this Court refusing to allow the applicant to sue as a pauper.

2. The brief facts forming the background of this case are that agricultural land bearing Survey Nos. 76 and 77 situated in Deh Jureji, Taluka and District Karachi was acquired under the Land Acquisition Act, 1894 for the Karachi Steel Mill. The Land Acquisition Collector passed an award on 6‑12‑74 determining the compensation for the acquisition of the land. The .applicant claims that the aforesaid land was owned by his grand‑father Mazar son of Yaqoob who died in the year 1951 leaving him as his sole heir as his father had died during the lifetime of his grand‑father. The applicant alleges that he received no notice of the acquisition proceedings. But on 19‑11‑74 he approached the Collector and requested him for issuance of notice to him ,as the other land owners whose lands had been included in the acquisition scheme had already received notices. The applicant was told that his name did not appear in the record‑of rights which was entered in the names of respondents 1 to 6 as owners. According to the applicant respondents Nos 1 to 6 are the heirs of Sonjo the brother of his grand‑father Mazar, who also died during the lifetime of the latter. Upon these allegations the applicant claimed to be the owner of the land to the exclusion of respondents Nos. 1 to 6 and challenged the correctness of the entries in the record‑of‑rights. He complained that the Collector illegally issued notice to the respondents Nos. 1 to 6 and refused to entertain the claim of the applicant as the owner of the land. On these averments the applicant brought the present application under Order XXXIII, rule 1, C. P. C. as a pauper and claimed the relief of declaration of his title to the land in question or in tile alternative declaration that he is entitled to receive compensation for the aforesaid land and further claimed a decree against respondents Nos. 1 to 7 for the sum of Rs. 2,41,75 (the compensation amount) jointly and severally. He also claimed permanent injunction to restrain respondents I to 6 from claiming any right, title or interest in the land in dispute or compensation thereof.

3. The report of the City Deputy Collector. Karachi was called for by the Assistant Advocate‑General, Sind in which it was reported that the applicant owns no ostensible assets or property to pay the court‑fee. It was further stated in the report that the applicant earns Rs. 225 per. month and lives in a katcha hutment in Mazar Khan village, Malir‑Karachi.

4. The respondents Nos. 1 to 6 in pursuance to the notice appeared and resisted the plea of the pauperism by the applicant. The plea in defence, apart from the legal objection as to maintainability of the application, was that the applicant owns a residential house of the approximate value of" Rs. 10,000 besides owning two milching cows and goats valued at Rs. 5,000. The Additional Registrar allowed the parties to lead evidence and finally by the impugned order came to the conclusion that the applicant was disentitled to sue as a pauper as he was guilty of not disclosing in the schedule of assets all the property owned and possessed by him. It will be observed that this conclusion was reached by the Additional Registrar on the view that the applicant owned and possessed a pacca built house which he failed to disclose in the schedule. Besides it was observed that the applicant had failed to mention two beds and some cooking utensils and other household effects in the schedule.

5. At the outset I may stale that it was conceded at the bar that at the, relevant time when the main petition was instituted a suit for the reliefs claimed in the application was chargeable with a court‑fee stamp of Rs. 15,000. Consequently there is no scope for a controversy, even if the applicant owned the house of the value of Rs. 10,000 and other household effects, be could be said to have the means sufficient to enable him to pay fees prescribed by law for the plaint in the suit. Order XXXIII, rule 1, C. P. C. in the Explanation appended thereto clearly stipulates that a person is a "pauper" when he is not possessed of sufficient means to enable him to pay the fees prescribed by law for the plaint in such suit, in cases where such fee is prescribed. It is therefore, not necessary to examine the evidence with a view to determine whether the applicant is a pauper or not within the meaning of law. The contest offered to the application was therefore, rightly confined to the grounds of law.

6. Mr. Sharif, the learned counsel appearing for respondents Nos. 1 to 6 sought to support the impugned order and contended that the application of the applicant was liable to be dismissed under the provisions of Order XXXIII, rule 5, C. P. C. on the following grounds ;

(1) That the application was not framed and presented in the manner prescribed inasmuch as some of the property owned and possessed by the applicant was not mentioned in the schedule and that the schedule itself was not verified; and

(2) that the allegations contained in the application do not show a cause of action inasmuch as the suit was barred under the provisions of Land Acquisition Act, specially for want of notice of suit under section 52 of the Land Acquisition Act.

7. In connection with the first ground the submission of the learned counsel was that the evidence established the fact that the applicant owned a pacca constructed house at his village, nevertheless the applicant suppressed the fact and did not disclose this property in the schedule. Learned counsel cited Sailkupa Co‑operative Multipurpose Society Ltd. v. Jehangir (P L D 1957 Dacca 374) and. Standard Vacuum Oil Company v. Anwarul Hague (P L D 1959 Lab. 855), where it was laid down that an applicant for permission to sue in forma pauperis is required to show utmost bona fide in the matter of disclosure of all his assets and in case of his failure to do so the application is liable to be rejected regardless of the motive for his so doing. In other words the submission of the learned counsel was that even though the status of the applicant as a pauper may not be open to question, his application is liable to be dismissed for his failure to disclose all his property. There can be no quarrel with the proposition of law enunciated in these decisions. But the question for consideration is whether the applicant in this case did own the house in question.

8. On behalf of the applicant, he himself and Haji Ali Buz were examined. The applicant has admitted in his evidence that there is a pacca built house built with cement blocks within the courtyard of his hutment which belongs to his son named Khuda Bux, who is independent and lives separately. Haji Ali Buz has stated that the applicant and his son's house is in the same hedge enclosure. He has further stated that the age of applicant's son Khuda Bux is about 23 years. On the respondents' side besides respondent Ahmed Khan, witnesses Habibullah, Soomar and Aziz have been examined. Witness Habibullah stated that the applicant is living in a house built with cement blocks having cement roof sheets 20' x 7 besides a house built of mud walls and thatched roof. Witness Soomar has given evidence regarding alleged sale of cattle by the applicant and has stated nothing about the house in question. So also witness Aziz deposed about the alleged purchase of a cow from the applicant. Mr. Nooruddin, Enquiry Officer in the office of the City Deputy Collector was also examined as a witness and deposed that he conducted an enquiry regarding the pauperism of the applicant. He stated that the applicant had no movable or immovable property. He admitted that he knew the parties to the suit personally and that he made oral enquiries from the other co‑villagers of the applicant in connection with the enquiry.

9. Referring to the certificate of the City Deputy Collector, Karachi wherein it was stated that' the applicant lives in a katcha hutment and maintains his wife, two sons and two daughters. Mr. Sharif contended that the plea of the applicant that his son Khuda Bux was living in his own house is unbelievable. A reference to the deposition of the applicant however, shows that the applicant has three sons and three daughters and one of his daughters has been married. I therefore, find no contradiction between these two statements. It was then argued that it is sufficient to hold that the house belongs to the applicant because of the admitted position that the house in question is situated in the same enclosure with the hutment admittedly owned by the applicant. I am quite unable to understand the reasoning behind this contention. It is customary for people in the countryside, for reasons of security and otherwise to live alongwith their grown‑up children in separate houses in the same enclosure. On the contrary if the applicant has a pacca built house, there is no reason for him to maintain a thatched house. Counsel further submitted that the house having been constructed six years back when Khuda Buz must be only 18 years old, it is clear the house is owned by the applicant. But nothing has been pointed out in the evidence to show that the house was constructed six years before. On the other hand, respondent Ahmed Khan has categorically admitted in his evidence that he had never been to the pacca house of the applicant and has no knowledge about the accommodation therein. This is significant inasmuch as this respondent resides in same village and claims to be the Headman of the village. He has further made a damaging admission to the effect that he cannot say that this pacca construction belonged to Khuda Bux.

10. On the whole therefore, and in view of the discussion herein above I have no hesitation to conclude that respondents have failed to establish that the house in dispute was owned by the applicant. The first contention therefore, fails and the application cannot be rejected on the ground of failure to disclose all the assets owned by the applicant.

11. Adverting now to the legal objections urged in opposition to the application, the first submission of Mr. Sharif was that the claim is barred in view of the provisions of sections 12, 30 and 52 of the hand Acquisition Act. Section 12 extends finality to the award passed by the Collector in respect of "the true area and the value of the land, and the apportionment of the compensation among the persons interested." It is however, to be noted that finality of the award in regard to the specified matters is expressly confined as between the Collector and persons interested, "whether they have respectively appeared before the Collector or not." It is no doubt true that apart from the remedy of reference under section 18 to the District Court there is no other remedy available for the party whose property is acquired as to the adequacy of the amount of compensation for which recourse must be taken under section 18. In the present suit neither .the acquisition is challenged nor the value of land is being disputed. But it was contended that in claiming the entire compensation amount the applicant is seeking to raise a question which relating as it does to the entitlement to payment of compensation, indirectly falls within the purview of apportion ment of the compensation. The contention is rather far‑fetched but even so has no merit. The bare reading of section 12 clearly shows that finality attached to the award is so far as the parties before the Collector or District Judge are concerned but a person who is not a party to the proceedings would obviously be at liberty to file a suit as he would not be bound by the award (see Gul Mir Khan v. Habibullah Khan (160 I C 1010). The section refers to an interested person whether he has appeared before the Collector or not, to 's be bound by the award in relation to the specified matters. Section 9 provides for the notice for claims to compensation to interested persons and apparently therefore, only such persons are parties to the award who have been recognized as prima facie interested persons by the service of notice. It is quite obvious therefore, that a person who may be the real owner of the property but who was not treated as interested persons by the service of notice, cannot be deprived of his remedy at law without being afforded an opportunity to present his claim. In the present case according to the allegation of the applicant be approached the Collector for issue of notice against him but his request was not entertained on the ground that his name did not appear in the record‑of‑rights. In section 12 while providing for finality of the award it is stipulated that the award shall be final "as between the Collec tor and the persons interested, whether they have respectively appeared before the Collector or not". The use of the word "appeared" has clear reference to notice under section 9, in response to which the parties have the choice to appear or not. I am therefore, clearly of the view that the provisions of section 12 would be attracted only in respect of persons who are thus impleaded as parties to the proceedings.

12. Be that as it may, there appears to be no bar to a suit by a person claiming to be entitled to the compensation as against the persons actually receiving the same, as such suits are clearly saved from the barring provisions of the Land Acquisition Act by the last proviso to section 32 (2) which reads as under :‑--

"Provided also that nothing herein contained shall affect the liability of any person who may receive the whole or any part of any compensa tion awarded under this Act, to pay the same to the person lawfully entitled thereto."

This is sufficient also to dispose of the objection based on section 30 as that section merely provides for the reference of a dispute as to the persons who are entitled to receive the compensation to the Court by the Collector. Admittedly no such reference was made by the Collector in this case although he was allegedly approached in this connection.

13. Mr. Sharif strongly contended that the Collector being a party to the suit, the same is clearly barred for want of statutory notice under sec tion 52, Land Acquisition Act. It was submitted by Mr. Brohi that section 52 is only attracted in cases where tortious acts of public functionaries are questioned in a suit. It is not necessary for me to burden this order with the discussion of the contentions raised as Mr. Brohi for the applicant has submitted a statement withdrawing the suit against defendant No. 7. With the withdrawal of the suit against the Land Acquisition Officer the objection grounded on section 52 of the Land Acquisition Act disappears and no fault can be found with the suit on that account. At any rate in terms of the dictum laid down by their Lordships of the Supreme Court that the complicated questions of law are not required to be decided at this stage and must be left to be decided in the suit, it is not necessary to further pursue this question (1970 S C M R 77).

14. No other argument was raised by the learned counsel for the respondents. I would therefore, hold that the plaint discloses a cause of action.

15. For the foregoing reasons I would set aside the order of the Additional Registrar and allow this appeal. As a result I allow the applicant to sue as a pauper. The application of the applicant shall be numbered and registered and be deemed to be the plaint in the suit which shall proceed further in accordance with law.

S. Q. Appeal allowed.

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