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--------O. XXXIII, r. 6 read with Limitation Act (IX of 1908), Arts, 22, 36 & 115-Application in forma pauperis-Applicability of Articles- Injury committed by overt act-Article 22, applicable-Injury resulting on account of misfeasance-Not covered by Art. 22-Whether case covered by one Article or another-Question doubtful-Application to sue in forma pauperis, held, cannot be disallowed in circumstances.

Fazal v. Abdul Hussain P L D 1977 Kar. 772 ref. .

Abdul Majid Butt v. United Chemical Ltd. P L D 1970 Lah. 298 and Kohinoor Industries Ltd. v. Abdul Majid Butt 1970 S C M R 77 rel.

Tariq Masood for Petitioner.

Mohd, Abdul Ghani for Respondent.

Dates of hearing : 8th and 10th July 1979.

This is a petition against an order dated 23-11-1978 passed by the learned trial Court dismissing the petitioner's application to sue in forma pauperis on the ground that if the application is allowed the suit would be barred by Article 22 of the Limitation Act. The petitioner applied for permission to sue in forma pauperis for filing a suit for damages amounting to Rs. 8,36,981 on the ground that during the tenure of his service the petitioner has suffered damages on account of the negligence of the respondent to provide inter alia medical facility. The Collector gave a report against the petitioner in regard to his pauperism but the learned trial Court was of the view that in view of the evidence produced by the petitioner in Court it was not proved that he had any belongings of his own. However on the basis of Fazal v. Abdul Hussain (P L D 1977 Kar. 772) the Court was of the view that if it is proved that the suit would be barred by limitation under any Article of the Limitation Act, the application to sue in forma pauperis cannot be allowed. Applying this principle the learned Court held that the suit was barred by Article 22 of the Limitation Act.

2. Now there are three Articles which have to be considered. Article 22 provides "for compensation of any other injury to the person" and the period of limitation is one year from the date when the injury is committed. Article 36 deals with compensation for any malfeasance, misfeasance or non-feasance independent of contract and not herein specially provided for. The limitation for such a suit is two years from the time when the malfeasance, misfeasance or non-feasance takes place. Article 115 is for compensation for the breach of any contract, express or implied, not in writing registered and not herein specially provided for. The limitation for such a suit is three years hen the contract is broken, or when the breach in respect of which' the suit is instituted occurs or when it ceases. The case of the respondent is that the matter is governed by Article 22 while according to the petitioner it is governed by Article 36 or Article 115. The learned counsel for the petitioner relies upon Abdul Mojid Butt v. United Chemical Ltd. (P L D 1970 Lah. 298) in which it was held while distinguishing Articles 22 and 36 that Article 22 will apply only where there is an injury committed by an overt act and would not cover a case of injury resulting on account of misfeasance. ,

3. This case was taken up in appeal in civil petition for special term Appeal to the Supreme Court in Kohinoor Industries Ltd. v. Abdul Majid Butt (1570 S C M R 77). Their Lordships did not give, any finding on this particular question but held that where it is doubtful whether the case is covered of one Article of the Limitation Act or the other, the application to sue in forma pauperis cannot be disallowed. The principles laid down in these cases are applicable to the facts of the present case also.

4. However, the learned counsel for the respondent argued that if the case in covered by Article 36, it would be necessary for the petitioner to show that there is a case of misfeasance, non-feasance or malfeasance. He should prove as to which conduct of the defendant was responsible for the heart attack to the petitioner.

5. The argument of the learned counsel for the respondent itself shows that even on the allegations in the plaint it is a matter to be proved whether the case is of misfeasance or non-feasance. In these circumstances the matter is covered by the principle laid down in the Supreme Court case that where it is doubtful as to which Article of the Limitation Act would apply, the Court should not disallow the application to sue in forma pauperis.

114 6. I, therefore, allow this petition with costs, set aside the orders of the learned trial Court. and grant the application to sue in forma pauperis. The learned Court shall register the suit and proceed with it in accordance

With law. ,

X. M. A. Petition accepted.

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