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Tanigondala Rosi Reddy Vs. Syamala Laxmaiah and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 2356 of 1972
Judge
Reported inAIR1974AP171
ActsCode of Civil Procedure (CPC), 1908 - Order 43, Rule 1- Order 33, Rule 5 and 7
AppellantTanigondala Rosi Reddy
RespondentSyamala Laxmaiah and ors.
Appellant AdvocateK. Venkataramaiah, Adv.
Respondent AdvocateS. Ranga Reddy, Adv.
Excerpt:
.....procedure, 1908 - whether appeal lie under order 43 rule 1 when application filed under order 33 rule 1 rejected on ground other than those specified in order 33 rule 5 - in present case application rejected on ground that applicant was not pauper - said ground not mentioned in order 33 rule 5 - held, appeal not lie and only remedy available to appellant is to apply for revision. - 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 given notice of the case, it is entitled to defend..........'or rule 7' in cl. (nn) are used, and not with the intention of making every order made under rule 7 appealable . further, it is significant that, while rule 5 of order 33 speaks of rejection of an application on any one of the grounds specified in clauses (a) to (e) rule 7 speaks of not only rejection of an application but also allowing an application. cl. (nn) contemplates only rejection of an application under rule 7 on the grounds stated in cl. (d) or (d-1) of rule 5. when rule 7 does not speak of any grounds on which an application can be rejected but only prescribes procedure to be followed where the court does not see any reason to reject an application on any of the grounds stated in rule 5, it will be impossible to construe the reference to rule 7 in clause (nn) of order 43.....
Judgment:

Obul Reddi, J.

1. The question involved in this Miscellaneous Appeal referred to a Division Bench by our learned brother, Ramachandra Rao , J., relates to the construction to be put upon Cl. (nn) of Order 43, Rule 1 of the C.P.C. The learned Judge doubted whether an appeal will lie to this Court when an application filed under Order 33, Rules 1 and 2 is rejected under Cl. (b) of Rule 5 of Order 33 holding that the applicant is not a pauper. We are not here concerned with the correctness or otherwise of the finding recorded by the Court of first instance on the question whether the applicant is not a pauper. We are only concerned with the question whether an appeal will lie under Cl. (nn) of Order 43 (1) when an application is rejected on grounds other than the grounds specified in Cls. (d) or (d-1) of Rule 5 of Order 43.

Order 43, Rule 1 (nn) reads :

'43 (1) An appeal shall lie from the following orders under the provisions of Section 104, viz.,

(nn) an order under Rule 5 or Rule 7 of Order 33 rejecting an application for permission to sue as a pauper on the ground specified in Cl. (d) or (d-1) of Rule 5 aforesaid.'

This rule provides for an appeal if the order made rejecting an application filed for permission to sue in forma pauperis is one based on the grounds specified in Cl. (d) or (d-1) of Rule 5. It is because of the fact that there is reference to R. 7 of Order 33 also that Mr. Venkataramaiah appearing for the petitioner contended that any application rejected under Rule 7 would be appealable notwithstanding that the rejection of the application was not on the grounds mentioned in Cl. (d) or Cl. (d-1) of Rule 5. We are unable to agree with Mr. Venkataramaiah that any order made after hearing the parties as provided in Rule 7 would be appealable order the reason that there is reference to Rule 7 also in Cl. (nn) of Order 43 (1) . Cl. (nn) , if we may say, is not happily worded. Though there is reference to Rule 7, the application must be rejected only on the ground specified in Cl. (d) or Cl. (d-1) of Rule 5 of Order 33. Rule 7 does not prescribe any grounds ; it only prescribes the procedure to be followed when the Court does not see any reason to reject the application on any of the grounds specified in Rule 5, that procedure being that it shall fix a day convenient to the Court for examination of the witnessess , if any, produced by either party and for the examination of the petitioner or his agent, as the case may be, and for hearing the arguments and pronouncing the order either allowing or refusing to allow the application to sue as a pauper. It would be open to the Court to reject an application without ordering notice to the respondents, if it finds on the material furnished in the application itself that the grounds (a) to (e) specified in Rule 5 operate as bar. The Court is under no obligation to issue a notice to the applicant before rejecting the application on any one of the grounds mentioned in Rule 5. The question of following the procedure prescribed in Rule 7 arises only where the Court sees no reason to reject the application initially on any of the grounds specified in Rule 5 and not otherwise, Cl. (nn) of Rule 1 of Order 43 will apply, whether an application is rejected after giving notice and following the procedure prescribed by Rule 7 or whether it is rejected without giving notice and hearing the parties, so long as the rejection is on the grounds mentioned in Cl. (d) or (d-1) where the allegations do not show a cause of action or where the suit appears to be barred by any law. It is for that reason that the words 'or Rule 7' in Cl. (nn) are used, and not with the intention of making every order made under Rule 7 appealable . Further, it is significant that, while Rule 5 of Order 33 speaks of rejection of an application on any one of the grounds specified in Clauses (a) to (e) Rule 7 speaks of not only rejection of an application but also allowing an application. Cl. (nn) contemplates only rejection of an application under Rule 7 on the grounds stated in Cl. (d) or (d-1) of Rule 5. When Rule 7 does not speak of any grounds on which an application can be rejected but only prescribes procedure to be followed where the Court does not see any reason to reject an application on any of the grounds stated in Rule 5, it will be impossible to construe the reference to Rule 7 in Clause (nn) of Order 43 (1) as indicating that in every case of rejection of an application , whether it be on the ground specified in Cl. (d) or Cl. (d-1) , or not, that an appeal will lie provided there is a hearing of the application under Rule 7. Rule 7 is mentioned in Cl. (nn) by way of abundant caution that , even in a case where an application is dismissed on the grounds stated in Cl. (d) or (d-1) after following the procedure laid down in Rule 7, an appeal shall lie and that the right of appeal is not restricted to rejection of an application without notice to the respondents and hearing them.

2. In the view taken by us we are supported by what Vaidialingam, J., (as he then was of the Kerala High Court) said in Avirah Ouseph v. Ammukutty Amma, : AIR1965Ker179 that

'the more reasonable interpretation to be placed on clause (nn) of Rule 1 of Order 43 of the Code of Civil Procedure , is that in order to enable a plaintiff whose application to sue as a pauper, has been rejected , whether the rejection is at the preliminary stage under Rule 5 , or after the issue of notice under Rule 6, and following the procedure under Rule 7, and then finally rejecting the application under Rule 7 (3), the rejection must have been either on the ground that the plaintiff's allegation do not show a cause of action as provided in clause (d), or on the ground that the suit appears to be barred by any law, as provided in clause (d-1) of Rule 5. If the rejection of the plaintiff's application for leave to institute a suit as a appears, is on any other grounds not covered by clause (d) or clause (d-1) of Rule 5, whether the rejection is at the preliminary stage dealt with by Rule 5, or after hearing the parties under Rule 7, the plaintiff is not entitled to file an appeal as against such an order of rejection.'

The case of Govinda Pathiyar v. Ananthanarayana, AIR 1965 Mad 441 at p. 442 relates to the scope and interpretation of Rule 15, Order 33. But there is however an observation of Govinda Menon, J., who spoke for the Bench :

'But where the application is rejected on the ground that the allegations do not show a cause of action, an appeal is provided under Order 43 , Rule 1 (nn) and it is difficult to see how such an appeal can be refused a hearing on account of a circumstance, which has taken place subsequently.'

Though the question posed in this case did not directly arise in that case, still that observation would show that an appeal will lie only where the application is rejected on the ground that the allegations do not disclose a cause of action. N. D. Krishna Rao, J. (as he then was) in K. Virupakshiah v. M. Sivalingaiah, : AIR1960AP540 did not intend to lay down that any order under Order 33, Rule 1, C.P.C. would be an appealable order under Cl. (nn) of Rule 1 of Order 43 . We are, therefore, of the view that an appeal will not lie unless the application to sue as a pauper is rejected on the ground specified in Cl. (d) or Cl. (d-1) of Order 33, Rule 5 whether such rejection is before or after the notice. Since the rejection in this case is not on the ground referred to in Cl. (d) or Cl. (d-1) of Rule 5 of Order 33, we must hold that an appeal does not lie but only a revision. It would be open to the petitioner to convert this miscellaneous appeal into a revision. Post the case before a single Judge after it is converted into a revision. (Call on Monday).

In pursuance of the abovesaid orders A.A.O. 68 of 1969 having been converted as Civil Revision Petition No. 2356 of 1972 and the Civil Revision Petition coming on final hearing, Muktadar, J. delivered the following judgment .

3. The lower Court has dismissed the petition of the petitioner herein to declare him as pauper on the ground that the petitioner has not established dispossession from the 2/3 rd portion of the suit property. The lower Court came to this conclusion on the basis that the petitioner has used the words 'driven out of the house' and not dispossessed. I fail to appreciate how the lower Court could distinguish between the factum of dispossession and being driven out of the house. A person who has been driven out of the house obviously would be considered to have been dispossessed of the house. That is what the plaintiff meant by stating that he was driven out of the house. That apart, the plaintiff has filed a suit for possession of the entire property. He would never have filed the suit for possession of the entire property when he was in possession of 2/3 rd portion of the property.

4. I am , therefore, of the opinion that the plaintiff is not in possession of the entire house. The lower Court will however enquire as to the pauperism of the petitioner keeping in view the fact that the petitioner is not in possession of the property and pass fresh orders.

5. Hence, this revision is allowed and the case remanded back to the lower Court. Having regard to the circumstances of the case, there will be no order as to costs.

6. The lower Court is directed to dispose of the matter expeditiously.

7. Order accordingly.


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