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Kamrakh Nath Vs. Sundar Nath - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1898)ILR20All299
AppellantKamrakh Nath
RespondentSundar Nath
Excerpt:
civil procedure code, sections 406, 407 - application for leave to sue in forma pauperis--applicant to make out that he has a good subsisting cause of action. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the..........observe here that that was a very loose allegation. in nearly all these cases of succession to the gaddis of temples the succession is governed by the custom of the class to which the temple is appropriated. sometimes the mahant nominates his successor, and that successor on the death of the mahant becomes entitled by virtue of the nomination. in other cases the successor is appointed by the representative of the founder of the temple. in others again the successor is appointed by the mahants of the neighbouring temples, but the instances we have given are not exhaustive of the customs which have been found to apply in such cases. consequently the mere allegation that a claimant is entitled by law and custom to the gaddi of a temple is not in our opinion a sufficient allegation of title......
Judgment:

John Edge, C.J. and Burkitt, J.

1. This is an application asking the Court to revise, under Section 622 of the Code of Civil Procedure, an order of the Subordinate Judge of Gorakhpur rejecting an application for leave to sue as a pauper. The applicant alleged that he was the eldest chela of the deceased mahant; that whilst he was on a pilgrimage the mahant died and the proposed defendant to the suit had wrongfully usurped the gaddi and the position of mahant of the temple, and the applicant alleged that he was entitled to the gaddi by law and custom. We may observe here that that was a very loose allegation. In nearly all these cases of succession to the gaddis of temples the succession is governed by the custom of the class to which the temple is appropriated. Sometimes the mahant nominates his successor, and that successor on the death of the mahant becomes entitled by virtue of the nomination. In other cases the successor is appointed by the representative of the founder of the temple. In others again the successor is appointed by the mahants of the neighbouring temples, but the instances we have given are not exhaustive of the customs which have been found to apply in such cases. Consequently the mere allegation that a claimant is entitled by law and custom to the gaddi of a temple is not in our opinion a sufficient allegation of title. Something more than general allegations are requisite in the plaint where a claim is made to the possession of property which is in the possession of another person, always of course provided that the case is not one falling under Section 9 of the Specific Relief Act. The case of Philipps v. Philipps L.R. 4 Q.B.D. 127, and that of Dawkins v. Lord Penrhyn L.R. 4 App. Cas. 58, are instructive as to the law on this subject in England.

2. The Subordinate Judge examined, under Section 406 of the Code of Civil Procedure, the applicant regarding the merits of his claim. The fact that he was a pauper was not disputed. It appeared from the examination that, according to one custom at least affecting the particular temple, a jar with water in it was placed on the gaddi in the event of the mahant dying during the absence of the person entitled to succeed him on the gaddi. This is Dot alleged to have been done in the present case, and it also appeared that the defendant had taken possession of the gaddi without any serious opposition on the part of the panches of the temple. On these facts the Subordinate Judge-came, to the conclusion that the applicant had not shown a primd facie reasonable cause of action, and rejected the application for leave to sue as a pauper.

3. It has been contended that this case comes within the ruling of the Bombay High Court in Venkubai v. Lakshman Venkoba Khot I.L.R. 12 Bom. 617. It appears to us that that case does not apply here. Here the Judge addressed himself to the question of whether or not the applicant had shown grounds from which it might be inferred that he had a probable cause of action. It is obvious that the mere statements in the plaint which accompanies an application for leave to sue as a pauper cannot be accepted as the Bole materials on which a decision as to whether the applicant's allegations do or do not show a right to sue can depend. If the allegations in the plaint were the sole matters to be looked to and the applicant were admittedly a pauper, the granting of this application to sue as a pauper would depend, not on whether he had any merits to go upon, but on the skill of the gentleman who drafted his petition and his plaint, and the examination as to the merits under Section 406 would be superfluous.

4. It has been held by this Court in Chattarpal Singh v. Raja Ram I.L.R. 7 All. 661, that Clause (c) of Section 407 of the Code of Civil Procedure does not refer solely to a question of jurisdiction, but that the applicant must make out that he has a good, subsisting prima facie cause of action capable of enforcement in Court and calling for an answer. That Full Bench ruling was cited with approval by Jardine, J., in Dulari v. Vallabdas Pragji I.L.R. 13 Bom. 126, and even if the Madras Court in Koka Ranganayaka Ammal v. Koka Venkatachellapati Nayudu I.L.R. 4 Mad. 323, took a different view, we are bound to follow the Full Bench ruling of our own Court. We may say that we entirely approve of that Full Bench ruling. Further, the Madras Court in Vijendra Tirtha Swami v. Sudhindra Tirtha Swami I.L.R. 19 Mad. 197, did not follow the case in I.L.R. 4 Mad. 323. Assuming the Full Bench ruling to be correct, as we do, it was within the jurisdiction of the Subordinate Judge to decide whether or not the applicant's allegations showed a right to sue. It has been held by their Lordships of the Privy Council in Rajah Amir Hassan Khan v. Sheo Bakhah Singh L.R. 11 I.A. 237, that where a Court has jurisdiction to decide a question, and does decide it, the High Court cannot under Section 622 of the Code of Civil Procedure interfere merely because, the Court has wrongly decided the question. There is no question in this case of illegality or material irregularity. The result is that the Subordinate Judge had jurisdiction to decide this question and did decide it. He was not guilty of any illegality or irregularity, and it is unnecessary to consider whether he decided the question rightly or wrongly. We cannot interfere. We dismiss this application with costs.


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