1. This revision is directed against the order of the District Munsif of Kurnool, dismissing the petitioners' application for review of his order dated 4-4-1958. The 1st petitioner is the father and the second petitioner is the daughter who filed a suit in forma pauperis for the recovery of damages for the loss sustained on the allegation that the second petitioner's mother was knocked down by a lorry belonging to the defendant and was killed.
The petitioners filed the present suit for recovery of damages from the defendant This suit was filed in forma pauperis. This petition to sue in forma pauperis was opposed by the respondent firstly on the ground that the petitioners had no locus standi, he disputed the fact alleged in the plaint, that the 1st petitioner was the husband of the deceased and that the 2nd petitioner was born to the 1st petitioner and the deceased. The fact that the 1st petitioner was not in a position to pay the court-fee was also disputed.
The petitioners examined in support of their pauperism petitioner No. 1 as P. W. 1. On behalf of the respondent, three witnesses were examined viz., R.W. 1 Karnam, R. W. 2 Respondent himself and R. W. 3 who is said to be a relation of the deceased Santhamma. On this oral evidence the court came to the conclusion that the 1st Petitioner had not let in any independent evidence to show that he married Santhamma. There was no record produced evidencing the fact that Santhamma was the wife of the 1st petitioner.
He animadverted on the fact that the birth extract of the second petitioner who is said to have been born five years ago at Kurnool was not produced. He therefore believed the evidence produced by the respondent and came to the conclusion that it had not been established that Santhamma was the married wife of the 1st petitioner. As regards the question as to whether the petitioners were possessed of sufficient means to pay the court-fee, the court came to the conclusion that the properties of Santhamma were in possession of others and not with the petitioners at the time of the suit
In effect this finding wag in favour of the petitioners. The court further held that the respondent was not able to prove that the petitioners had means to pay the court-fee. While holding so, the court came W the conclusion that the petitioners had no locus standi to file the suit in forma pauperis, that the allegations in the plaint did not disclose any cause of action and in the result, it dismissed the petition to sue in forma pauperis.
The petitioners thereafter filed an application under Order 47, Rule 1, read with Section 151 C. P. C. praying that the order passed by the court on 4-4-1958 rejecting their application to sue in forma pauperis be reviewed. Along with this petition the 1st petitioner filed a true copy of the Marriage Registration certificate granted by the Registrar of Marriages and in so doing he stated that he could not file that document earlier in spite of his best efforts as he was able to receive the certified copy only on 7-6-1958 and that that was an important piece of evidence showing the relationship of the petitioners with the deceased Santhamma.
Therefore, it was on the basis of the fresh documentary evidence that was available, the petitioners sought a review of the Previous order. This application, was opposed on the ground that the relationship of Santhamma with the 1st petitioner was denied even at the stage of the reply notice sent by the respondent and had stated in his counter to the application to sue in forma pauperis that Santhamma was not the wife of the 1st petitioner.
Under the circumstances therefore the 1st Petitioner had knowledge of the fact of respondent denying the relationship between the deceased and the 1st petitioner and as such he should have produced the evidence at the earlier stage and inasmuch as he failed to do so, it was not open to him to produce the same at a later stage and seek a review of the order.
2. The lower court considered the petition and the objections on the other side and finally rejected the application holding that it was within the knowledge of the 1st petitioner even at the stage of evidence of pauperism and that being the best evidence he did not produce the same at the earlier stage and that therefore there was no exercise of due diligence on his part in getting the necessary documents and held that he could not be allowed to produce the same and the production of this evidence could not be a ground for admitting a review under Order 47, Rule, 1 C. P. C, It is this order that is challenged in this revision.
3. A preliminary objection is raised on behalf of the respondent stating that no revision would lie against an order refusing to review inasmuch as it would amount to the exercise of discretion by the lower court and where such a discretion had been exercised, it is not open under Section 115 C. P. C. to interfere with such an order. For this purpose, reliance is placed upon a decision of the Madras High Court in the case of Viswanatham v. Sreenivasa Venkata Varadacharyulu, AIR 1943 Mad 377(1).
In this case the review was sought of a previous judgment of the court on the ground that in a subsequent suit a similar property was held to be an estate. The Judge refused to allow the review holding that there was no error apparent on the face of the record. Against that order a revision was filed in the High Court. Mocket J. following the decisions of the Allahabad and Bombay High Courts held that Section 115 C. P. C. could not be invoked against an order of a court refusing to grant a review of its decision.
In holding so, the learned Judge observed that the lower court had complete jurisdiction to decide as to whether review should be allowed or not and under those circumstances the jurisdiction of the High Court under Section 115 Civil P. C. could not be invoked. No doubt in that case the learned Judge also observed that there were no merits in the petition. The other decision on which reliance has been placed is the judgment of Curgenven, J. in Mahomed Sultan v. Nagoji Rao, AIR 1931 Mad 828.
In this case what the learned Judge observed was that in case where the court was of the opinion that the lower court had acted without jurisdiction, the remedy of the aggrieved party was to appeal against the order and it would be in very rare and unusual cases that such an order could be interfered with in a review or revision. That is to say, where the petitioner fails to adopt the remedy provided under the law, the court would not interfere either in a review or revision. In this case, the learned Judge merely left the matter there.
4. It is urged on behalf of the petitioners that the lower court failed to consider that there was an error apparent on the face of the record in this case in that the court dismissed the petition on the ground that it did not disclose any cause of action, which it could not at that stage. It is no doubt well settled that where a review is sought on the ground of the discovery of new and important evidence, it will be for the court before which a review petition is filed, to consider as to whether the conditions laid down in Order 47, Rule 1 C. P. C. are satisfied and whether the review petitioner could not with reasonable diligence have produced the evidence which he seeks to produce at the stage of review and if it is so satisfied to allow the review.
But the question here is whether it could be said that there was an error apparent on the face of the record in the order of the Court. The scheme of Order 33 C. P. C. is that the Court would first go into the question as to whether tho petitioner is not possessed of sufficient means to pay the Court-fee. There would be first an examination of the applicant and with regard to the property of the applicant and after that it would be open to the Court to reject the application if it finds that it has not been framed and presented in the manner prescribed by Rules 2 and 3 of the said order or where it finds that within two months before the presentation of the application, the petitioner fraudulently disposed of the property in order to apply for permission to sue as a Pauper and where the allegations in the plaint do not disclose a cause of action.
A further rule, Sub-rule (d-1) has been added in Madras to the effect that where it appears to be barred by any law also, the Court could exercise its powers under Order 33, Rule 5. In this case it would appear that after the examination of the petitioner No. 1, the Court found that the respondent was not able to establish that the petitioners were in possession of the property to pay the requisite Court-fee but it held that there was no cause of action and on the ground dismissed the application. The Court held that the allegations in the plaint did not show a cause of action on behalf of the petitioners. Decidedly the Court Purported to act under Order 33, Rule 5 (d), C. P. C. The question is as to whether the Court was justified under law to reject the application at that stage of the proceedings. The scope of the enquiry at the initial stage is only confined to the Pauperism of the plaintiff.
This matter was considered by Horwill, J., in the case of Subramaniam Pillai v. Koundappa Goundan, AIR 1943 Mad 663. In that case the learned Judge observed that the scope of the enquiry at this stage was confined only to the investigation as. to whether the petitioner was possessed of sufficient means to pay Court-fee; unless the Court found that on the allegations in the plaint there was no cause of action disclosed, the Court could not dismiss a petition in limine at that stage. This is what the learned Judge stated;-
'If the Court is to dismiss an application to sue in forma pauperis on the ground that there is no subsisting cause of action, it must be able to draw that conclusion from the allegations in the plaint itself.
(sic) (This is) as much as to say that it is not open to the Court to canvass any other extraneous matter for its coming to the conclusion that the plaintiff has no right of suit. The same view has been taken by a bench of this Court in the case of Venkata Subbiah v. Tirupathiah, : AIR1955AP165 wherein Subba Rao, C.J., (as he then was) discussed the scope of Order 33, Rule 5(d). The learned Chief Justice was also referring to Rule (d-1).
He stated that the enquiry contemplated is only in respect of the prohibitions in Rule 5. It does not enlarge or add to the said Prohibitions. The right to adduce and give rebutting evidence must, therefore, be confined to the prohibitions in Rule 5. These observations would indicate that it is only in a case where on the face of the allegations in the plaint the Court can come to the conclusion that the plaint does not dispose a cause of action, could an order be passed under Rule 5 (d).
In this case, the applicant examined himself with regard to his pauperism and stated that the deceased was married to him. That was in support of the allegations made in the plaint. The learned Judge of the lower Court disallowed the production of the documents produced by the petitioner along with the review petition on the ground that those documents were available to him and it was the duty of the petitioner to have produced them to support his case.
I do not think that the lower Court was right in this view of the matter, especially where it came to the conclusion that the 1st petitioner was a Pauper. The cases cited on behalf of the respondent in support of the Preliminary objection that no revision lay as against the order dismissing an application for review where the lower Court exercised its discretion cannot apply, in my opinion, to the fuels of this case.
As pointed out already, if it was on the ground that new and important evidence was available to the petitioner and it should have been produced that the lower Court rejected the review application, then it could be said that it was a proper exercise of the discretion with which this Court would not interfere. But here the production of the evidence which was sought to be produced later was not necessary to be produced and therefore here there is no question of evidence being available and not having been produced earlier. But where there has been an error apparent on the face of it, there could be no question of this Court not exercising its power under Section 115 C. P. C., where no appeal is provided for.
5. My attention was drawn to a decision of the Allahabad High Court reported in Ram Lal v. Ratanlal, ILR 26 All 572 and this case, it would appear, was followed by Mocket, J., in AIR 1943 Mad 377 (1). The Allahabad High, Court case was a case under Section 629 C. P. C. The ground on which the learned Judges of the High Court based their decision was that having regard to the language of the section, the intention of the legislature was that the Court which originally heard the case should be the Court to decide an application for review and it was left to that Court to decide as to whether the application to review its former judgment should or should not he granted and where such Court decides to reject such an application, its decision should not be open either to appeal or to revision by a High Court.
They were further of the opinion that Section 622 (Section 115) C. P. C. could not apply to the case before it as the case did not fall within the three contingencies in which a High Court has the power to call for a record of the case. With respect I would say that the view taken by the learned Judges might not be correct. For, their reasoning is that because it is the same Court which has to decide as to whether a review application should be allowed or rejected, its decision should not be open to appeal or revision.
Order 47, Rule 7 clearly provides for an appeal by Order 43, Rule 1. Therefore to hold that it is within the discretion of the Judge to allow a review and therefore such an order is not appealable might not be justifiable having regard to the provisions of Order 47, Rule 7 C. P. C. Where the law, therefore, permits interference where the review is allowed, the reasoning of the learned Judges cannot hold good.
Further, where no appeal is provided, this court has always jurisdiction under Section 115 C. P. C. to interfere where it finds that the lower court failed to exercise jurisdiction vested in it by law. The decision of Mocket, J., in AIR 1943 Mad 377 (1) is, in my opinion distinguishable. The learned Judge opined that the remedy of revision is open to a party only when there is no appeal provided for and in that case he held the party could have filed an appeal.
He also held that there was no question of jurisdiction in that case. But, in the case before me, it is wholly a case of jurisdiction, because the lower Court could not have rejected the evidence on the ground that it was not produced in the first instance, for, under the law evidence relating to the merits of the case is not to be produced at the stage of enquiry into pauperism.
The scope of enquiry before an application to sue in forma Pauperis is registered is limited. It may also be stated that in the case before Mocket J., the learned Judge while going into the merits of the case before him held that there were no merits and gave his reasons for the same. For these reasons, I am of the opinion that the case decided by Mocket, J., could have no application to this case.
6. The result is that this revision petition is allowed, the order of the lower Court set aside. The case will now go back to the trial Court to determine as to whether on a reading of the plaint, it discloses any cause of action as against the defendant and inasmuch as it has already decided that the petitioner is a pauper, to register the suit and proceed with the trial. Costs of this revision will abide the final result.