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K.Y. Sodamma and anr. Vs. K. Gunneswarudu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Misc. Petn. No. 3246 of 1971
Judge
Reported inAIR1973AP295
ActsCode of Civil Procedure (CPC), 1908 - Order 41, Rule 1; Andhra Pradesh High Court - Rule 15(2);
AppellantK.Y. Sodamma and anr.
RespondentK. Gunneswarudu
Appellant AdvocateN.V. Ranganadham, Adv.
Respondent AdvocateK. Surya Rao, Adv.
Excerpt:
civil - appeal - order 41 rule 1 of code of civil procedure, 1908 and clause 15 of letters patent - application to prefer letters patent appeal as in forma pauperis - whether such application maintainable in view of fact that no such provision contained in letter patent act - order 41 of code applicable to letters patent appeal - court empowered to permit appellant to prefer appeal as in forma pauperis by invoking provisions of code. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been..........to prefer a letters patent appeal in forma pauperis. it is argued that the provisions of order 44, civil procedure code have no application to a letters patent appeal.3. order 44 provides that any person entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as a pauper. it is argued that the expression ' appeal ' used in this order refers only to appeals provided by and preferred under the provisions of the civil procedure code and as a letters patent appeal is one preferred under cl. 15 of the letters patent and not under the civil procedure code, order 44 has no application to such an appeal. we are unable to agree with this contention. the.....
Judgment:

Alladi Kuppuswami, J.

1. This is an application for leave to prefer an appeal in forma pauperis against the judgment of Krishna Rao, J., in A. S. No. 340 of 1967. It is stated that the appellants have no means to pay the court-fee. The appellants were the plaintiffs in the Trial Court and they were permitted to sue in forma pauperis.

2. A preliminary objection is raised that there is no provision of law enabling this Court to permit a person to prefer a Letters Patent Appeal in forma pauperis. It is argued that the provisions of Order 44, Civil Procedure Code have no application to a Letters Patent Appeal.

3. Order 44 provides that any person entitled to prefer an appeal, who is unable to pay the fee required for the Memorandum of Appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as a pauper. It is argued that the expression ' appeal ' used in this Order refers only to appeals provided by and preferred under the provisions of the Civil Procedure Code and as a Letters Patent Appeal is one preferred under Cl. 15 of the Letters Patent and not under the Civil Procedure Code, Order 44 has no application to such an appeal. We are unable to agree with this contention. The expression ' appeal ' used in this Order is comprehensive enough and includes all appeals, including a Letters Patent Appeal. The Code of Civil Procedure is an Act to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature. The provisions of the Code apply to the High Court also. Section 117 of the Code expressly provides that the provisions of the Code shall apply to Courts, not being the Court of a Judicial Commissioner, save as provided in part IX or Part X of the Civil Procedure Code. Section 120 which occurs in part IX provides that Sections 16, 17 and 20 will not apply to the High Court in the exercise of its original jurisdiction. Section 122 provides, that High Courts may take rules regulating their own procedure and may by such rules annul, alter or add to all or any of the rules in the First Schedule. Subject to the argument based on Rule 51 (2) of the Appellate Side Rules which will be considered later it is admitted that the High Court has not passed any rules which have the effect of annulling, altering or adding to Order 44 which deals with pauper appeals. Rule 129 provides that notwithstanding anything in the Code the High Court may take such rules not inconsistent with the Letters Patent or orders or other law establishing it to regulate its own procedure in the exercise of its original civil jurisdiction as it thanks fit. Thus, it is clear from a combined reading of all these provisions that O. 44 would apply to appeals in the High Court though preferred under the Letters Patent, as there is no provision or rule made by the High Court contrary to Order 44, Civil Procedure Code.

4. The learned counsel for the respondent drew our attention to Order 41-B which provides that Order 41-A shall apply to appeals under Clause 15 of the Letters Patent. Order 41-A which deals with appeals to the High Court from original decrees of subordinate courts provides that the rules contained in Order 41 shall apply to the appeals in the High Court with the modifications contained in that order. From this, it is argued that it is only the provisions of Order 41, as modified under Order 41-A that are made applicable to appeals under Cl 15 of the Letters Patent, and no other order, including Order 44 applies to such appeals. This argument proceeds upon a mis-conception as to the scope of Order 41-B in the Code. As stated early, Order 41-A deals with appeals to the High Court from the original decrees of subordinate Courts. Hence it was necessary to provide specifically that the provisions of that order will apply to appeals under Clause 15 of the Letters Patent which are against the judgments of the High Court and not of Subordinate Courts. Order 44 however, is of a general nature and applies to all appeals. Hence, it is not necessary to make a specific provision making it applicable to appeals under Clause 15 of the Letters Patent. Hence from the mere fact that Order 41-B refers only to Order 41-A it cannot be argued that the provisions of Order 44 have no application to appeals under the Letters Patent.

5. Reference may be made to a decision in Smt. Chaboo Devi v. Ram Sarup, : AIR1965All79 , where it was held that having regard to Sections 117 and 122, Civil Procedure Code. Order 44 will apply to special appeal ( equivalent to a Letters Patent Appeal ) against a judgment of the High Court in a first appeal, unless there is anything in the rules contained in the schedule to the Code or any other rules made by the High Court annulling or altering it so as to make it not applicable.

6. Two other decisions also may be usually referred to in this connection, though they do not deal with the identical question before us. In Velumalai v. Kuppammal, AIR 1928 Mad 385, it was held that the Civil Procedure Code is generally applicable to the High Court in the exercise of its ordinary original Civil Jurisdiction except where it is specifically excluded, or unless the High Court itself has made rules superseding any particular provisions of the Code. Sections 117, 121 and 129 of the Code were relied on in this connection. It was observed that though there were some rules dealing with pauper suits on the original side, there was nothing inconsistent in these rules with Order 33, Rules 10 and 11 Civil Procedure Code and hence those rules were applicable to the original side also. In particular, reference was made to Order 49 (3) which provided that certain rules specified therein shall not apply to the High Court in the exercise of its ordinary original jurisdiction and Order 33 is not one of them.

7. In Venkatasubbarayudu v. Sri Rajah Krishna Yachendrulu Varu Bahadur, ILR 40 Mad 651 = ( AIR 1917 Mad 670 ) a question arose whether it is competent to the High Court to review judgments in appeal preferred under Clause 15 of the Letters Patent. One of the arguments advanced was that Section 114 of the Civil Procedure Code dealing with review cannot apply as it provides only for the review of decrees or orders passed under the Code of Civil Procedure. Their Lordships observed that they were not impressed by this argument, as ' in the first place decrees are passed in appeals heard under the Letters Patent only under the Code of Civil Procedure. In the second place, Section 114(b) does not require that orders and decrees should have been passed under the Code .' This reasoning would equally apply to Order 44. An appeal, though preferred under Clause 15 of the Letters Patent, would still be an appeal governed by the Code of Civil Procedure when there are no provisions in the Letters Patent inconsistent with the Civil Procedure Code in regard to such appeals. Further O. 44 does not require that the appeal should have been entertained under the Code, in the same manner as Section 114(b) does not require that orders and decrees which may be reviewed should have been passed under the Code.

8. It was argued that Rule 51 (2) of the Appellate Side Rules is a provision inconsistent with Order 44, Civil Procedure Code. Rule 51 deals with appeals to the High Court under Clause 15 of the Letters Patent. Rule 51 (2) provides that in appeals not provided for by Section 4 of the Court-fees Act, 1870, the fee shall be levied at the same rates in the same manner as in appeals falling under the said section, provided that the fee shall not be less than Rs. 10 /-. It was therefore, contended that Court-fee has to be paid for appeals under the Letters Patent. This argument, in our view has no substance. All that the rule says is that Court-fee has to be paid in accordance with the Court-fees Act in respect of Letters Patent Appeals also. This does not deal with the case of a pauper being permitted to prefer an appeal without payment of the Court-fee. That is dealt with by Order 44, Civil Procedure Code, Rule 51 (2) cannot be read to mean that in no event can an appellant be permitted to prefer an appeal without the payment of the court-fee. In this connection, the learned counsel for the respondent relied upon the decision in Smt. Chaboo Devi v. Ram Sarup, : AIR1965All79 , which has already been referred to. In that case though it was held that Order 44 would apply to Special Appeal, the learned Judges proceeded to hold that that provision cannot be applied to a Special Appeal in view of Rule 10 (2) in Chapter 9 of the rules of the Court which provided that in a special appeal from the judgment of one Judge passed in the exercise of appellate jurisdiction the memorandum of appeal, duly stamped shall be presented within sixty days from the date of the judgment. It was held that this provision is a positive and emphatic statement required every special appeal to be stamped, and there is a clear conflict between this provision and that contained in Order 41, R. 1. With respect, we are unable to share this view. There is no inconsistency between the two provisions one providing for a memorandum of appeal being stamped and another stating that in the case of a person who is unable to pay the court-fee, he may obtain permission of the court to sue as a pauper, that is, without affixing the requisite stamp. The learned Counsel for the respondent is right in stating that Rule 51 (2) is similar to Rule 10 (2) of the Rules of the Allahabad High Court, but as we have stated already we do not agree with the Allahabad High Court as far as the second part of its judgment is concerned.

9. For the reasons stated above we overrule the preliminary objection that there is no provision enabling this Court to permit the appellant to prefer a Letters Patent Appeal in forma pauperis.

10. As the appellants are paupers and as we are satisfied on a perusal of the application and the judgment under appeal that it is a proper case for permitting the appellants to prefer an appeal in forma pauperis the application is allowed.

11. No costs.

12. Petition allowed.


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