W. Comer Petheram, C.J., Straight, Oldfield and Brodhurst, JJ.
1. It seems to us that the question put by this reference can scarcely be answered generally, and that our reply to it must be limited to the particular case out of which it hcdas arisen. Their Lordships of the Privy Council in a recent ruling--Amir Hassan Khan v. Sheo Baksh Singh I.L.R. 11 Cal. 6 have laid down the following test to be adopted in deciding as to the powers of the High Court under Section 622 of the Civil Procedure Code: 'The question then is, did the Judges of the lower Courts in this case, in the exercise of their jurisdiction, act illegally or with material irregularity? It appears that they had perfect jurisdiction to decide the question which was before them, and they did decide it. Whether they decided rightly or wrongly, they had jurisdiction to decide the case, and even if they decided wrongly, they did not exercise their jurisdiction illegally or with material irregularity.' In the case before us, it is conceded that the Subordinate Judge had jurisdiction to hear the application, that he did hear it, and that he has decided it. It is not enough to give us jurisdiction to revise his order under Section 622, to show that he has decided wrongly, but it must be made out that he acted illegally or with material irregularity. We must therefore look to the sections of Chapter XXVI of the Code, under which the Subordinate Judge's proceedings were taken, to ascertain precisely what his powers were. By Section 403 it is provided that an application for permission to sue as a pauper must be in writing, that-it is to contain all the particulars required by Section 50 to be given in ordinary plaints, that it shall be accompanied by a schedule of the petitioner's moveable and immoveable property, with an estimate of its value, and that it must be signed and verified in like manner as a plaint. Section 404 deals with the presentation of the petition, and Section 405 enacts that, if the application is not framed or presented in the manner prescribed, it shall be rejected. Section 406 provides for the examination of the applicant; and then we come to Section 407, which declares the grounds on which, after examination of the applicant, the Court shall reject the application. If none of these grounds appear, in other words, if the applicant makes out satisfactory prima facie grounds for calling on the proposed defendant to show cause against his application, then notices are to issue as provided in Section 408, and they pave the way to the formal hearing mentioned in Section 409, at which the question of the applicant's pauperism has to be determined. It will thus be observed that the proceedings under Sections 405 and 407 are of a preliminary character, and a rejection under those sections is not, as in the case of Section 409, of a final kind, and a bar to a subsequent application. Examining Section 409 with advertence to the circumstances of the case out of which the reference has arisen, it appears to us that it was competent for the Subordinate Judge to reject the applicant's petition upon the ground that, as from his petition and his examination his cause of action was shown to have arisen 'beyond the period of limitation allowed by law for instituting the suit' (Section 50, last para.), his allegations did not 'show a right to sue' (Section 407, Clause c). We cannot read these words of Section 407 as limiting the Court's discretion to merely ascertaining whether the 'right to sue' arose within its jurisdiction, but they have in our opinion a more extended meaning, namely, that an applicant must make out that he has a good subsisting cause of action, capable of enforcement in Court, and calling for an answer, and not barred by the law of limitation or any other law. If it were not so, then the discretion of the Court, being limited to the matter of jurisdiction, would be of little value. Whether in the case before us we treat the Subordinate Judge's order as made under Section 407 or Section 405, it appears to us that he was acting entirely within his powers in holding that the applicant had no right to sue, his cause of action having accrued beyond the period of limitation provided by law for his proper suit. It has therefore not been shown that 'he exercised his jurisdiction with illegality or material irregularity,' and it follows that we have no jurisdiction to revise his orders under Section 622 of the Code. In these terms we answer the reference.
2. Bearing in mind the rulings referred to by the Division Bench and the course which the argument before the Full Bench has taken, I am of opinion that the question raised by this reference has two distinct aspects; first, as a general question, whether orders under Section 407 of the Civil Procedure Code are subject to the revisional jurisdiction conferred upon this Court by Section 622 of the Civil Procedure Code; and secondly, whether the circumstances of this particular case furnish grounds for the exercise of such revisional jurisdiction. I will consider each of these points separately.
3. Upon the first point, relating to the general principle upon which the revisional powers of this Court under Section 622 of the Civil Procedure Code, must be exercised, we are of course bound by the ruling of the Privy Council in Amir Hassan khan v. Sheo Baksh Singh I.L.R. 11 Cal. 6 and by the recent Full Bench ruling of this Court in Magni Ram v. Jiwa Lal ante p. 336 which simply adopted the rule laid down by the Lords of the Privy Council. I was one of the Judges who concurred in the Full Bench ruling, but finding that the rule therein laid down was interpreted in a manner which was inconsistent with my reasons for concurring in the Full Bench ruling, I took it upon myself in the case of Har Prasad v. Jafar Ali Ante p. 345 to explain, at some length, the exact scope of the rule laid down by the Lords of the Privy Council, and which we had unanimously adopted in the Full Bench. I still adhere to the views which I then expressed, and I now pass to the special question whether orders under Section 407 of the Civil Procedure Code, rejecting applications for permission to sue in forma pauperis, can be revised by this Court under Section 622 of the Code. But before expressing my own views upon the matter, I wish to refer to certain rulings which were cited on either side at the hearing. The first of these is the case of Phul Singh v. Jagan Nath Weekly Notes 1882 p. 39 in which a Division Bench of this Court held that an order refusing permission to sue in forma pauperis did not fall within the term 'case' in Section 622, and therefore could not be dealt with in revision. The same view appears to have been taken in Bhulneshri Dat v. Bidiadhis Weekly Notes 1882 p. 69 and also in Sital Sahu v. Bechu Ram Weekly Notes 1882 p. 92. It was principally in consequence of these cases that my brother Oldfield and myself made this reference to the Full Bench. The particular circumstances of these cases do not appear from the report, but I confess, and I say this with due deference, that I am unable to concur in the general form in which the rule was laid down in those cases. The word 'case,' as used in Section 622 of the Code, is nowhere defined; but adopting the general rule of construing statutes, I hold that the word should be understood in its most broadest [sic] and most ordinary sense, unless there were specific reasons for narrowing its meaning. I confess I am unaware of any such reasons, and limiting the arguments to orders under Section 407 of the Civil Procedure Code, I should say as a general proposition that that which might constitute the subject of an appeal would necessarily be a 'case.' I say this because in the course of the argument it was suggested that the reason why an order rejecting an application under Section 407 was not a 'case' within the meaning of Section 622, was that such an order constituted no adjudication, but only a preliminary proceeding taken before the appearance of the opposite party. So far as this argument is concerned, I have only to say that the Code itself provides cases in which adjudications do take place without the presence of the opposite party, and are regarded as adjudications furnishing matter for appeal. I need not refer to the Code at large, but only to such parts of it as afford the strongest analogy to the immediate question which I am now considering. Now Section 407 is a part and parcel of one distinct Chapter--XXVI of the Code--which provides rules for 'suits by paupers,' and begins with Section 401, which gives the general right to indigent persons to bring suits in forma pauperis, subject of course to the specific rules laid down in the Code. Section 403 provides that the pauper is to seek his remedy by a written application containing 'the particulars required by Section 50 in regard to plaints in suits;' Section 404 lays down rules as to presentation of the application; Section 405 gives a summary power to the Court to reject the application if the rules contained in Sections 403 and 404 are not duly observed; Section 406 provides for examination of the applicant 'regarding the merits of the claim;' and then comes Section 407, which confers upon the Court the power of rejecting the application after having ascertained the merits of the claim. This power is limited to the conditions prescribed by the various clauses of the section, but the clause with which we are immediately concerned is Clause (c), which lays down that one of the grounds for rejecting the application may be that the applicant's allegations do not 'show a right to sue in such Court.' To proceed further with the main features of the rules contained in the Chapter: Section 408 provides for the service of notice on the opposite party, fixing a day for receiving evidence as to the applicant's pauperism; Section 409 relates to the procedure to be adopted at the hearing; and Section 410 provides that 'if the application be granted, it shall be numbered and registered, and shall be deemed the plaint in the suit, and the suit shall proceed in all other respects as a suit instituted under Chapter V.' The only other section of the Chapter which I wish to notice is Section 413, which lays down that 'an order of refusal made under Section 409 to allow the applicant to sue as a pauper shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue, but the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such right.'
4. Now, reading these provisions of the law together, there is no doubt in my mind that the strongest possible analogy exists between an application to sue in forma pauperis and an ordinary plaint in a suit under Chapter V of the Code--a view fully supported by the principle upon which Sections 403 and 410 have been framed. This being so, it seems to me to follow as a corollary that rejection of an application to sue in forma pauperis under Section 405 or Section 407 falls under the same general category of adjudications as the rejection of an ordinary plaint under Section 53 or Section 54. In both cases the service of notice on the opposite side, or his appearance, is not a condition precedent to the exercise of the power of rejection, and it follows that if the rejection of a plaint is a 'case,' the rejection of an application to sue in forma pauperis must also constitute a 'case.' Indeed, the Code in Section 2 has expressly given to 'an order rejecting a plaint' the status of a 'decree' for the purposes of appeal, and, going further in the same direction, Clause (b) of Section 588 gives the rights of appeal even from 'orders returning plaints for amendment or to be presented to the proper Court,' that is, from orders under Section 83 or Section 67 of the Code. Now, as I said before, it is not easy for me to conceive that an adjudication which might have constituted a 'case' for appeal falls short of the meaning of that word as used in Section 622 of the Code; and I may say broadly that that which is a case for appeal must also be a case for revision, subject, of course, to the rules which govern the exercise of the appellate and revisional jurisdictions respectively. I might carry the analogical argument further by saying that the illegal rejection of a pauper's application to sue has for him the same effect as the erroneus rejection of the plaint has for an ordinary plaintiff; and though for obvious reasons the policy of the law is to differentiate between the two with reference to the right of appeal, the legal conceptions of an order rejecting an application to sue in forma pauperis and an order rejecting the plaint, must necessarily fall under the same category so far as the interpretation of the term 'case' in Section 622 is concerned. As to the policy of the law itself, I have to say, with reference to an observation made in the course of the argument, that I have long held the opinion that the only justification in the eye of legislative science for imposing taxes upon litigation in the shape of court-fees can be the check which they have upon frivolous and vexatious litigation, and that though such checks may be necessitated by the exigencies of the administration of justice, they must not be regarded as affording ground for the hypothesis that the Courts of Justice in British India have been established only for the rich, and that the law is intended to give less protection to the poor than to the wealthy. It is in this light, and this light alone, that I can interpret the rules of our law as to pauper litigants, whether such rules be contained in the Court-Fees Act or in the Civil Procedure Code. Something to this effect was said by me recently in disposing of an application under Section 549 of the Civil Procedure Code; and, applying the spirit of the same principle to the present case, and whilst fully aware of the policy of the law in connection with suits in forma pauperis as distinguished from ordinary suits, I hold that the provisions of Section 407 must be interpreted strictly, because they operate in derogation of the right which every litigant has to seek the aid of the Courts of Justice. There is of course no appeal from an order rejecting a pauper's application under Section 407 of the Code; but what I have already said satisfies me that such an order would be a 'case' within the meaning of Section 622. It may, indeed, as was said in the course of the argument, be a 'hard case,' furnishing grounds for interference in revision according to the rules provided by the law. The question must of course depend upon the circumstances of each case, and where jurisdiction has been exercised 'illegally or with material irregularity,' the case would of course be a proper one for the exercise of revisional powers by this Court. In Har Prasad v. Jafar Ali Ante p. 345 to which I have already referred, my brother Oldfield and myself concurred in holding that an obviously wrong exercise of jurisdiction in opposition to the rules of the limitation law constituted a ground for interference in revision. In the same case, in concurring with my learned brother, I illustrated my views by supposing other cases which would demand such interference, and, in the case of Raghunath Das v. Raj Kumar Ante p. 276 I held, though I had the misfortune of dissenting in the result from the opinion of my brother Oldfield, that the power of amending decrees under Section 206, when exercised 'illegally or with material irregularity,' would furnish grounds for revision. And here I wish to point out that my learned brother differed with me, not because he did not think that an order under Section 206 would constitute a 'case' within the meaning of Section 622, but because he was of opinion that the amended decree could be made the subject of appeal under Section 540, and therefore by reason of Section 622, which provides revision in appealable cases, the order could not be considered in the exercise of this Court's revisional jurisdiction. Upon the exact point which I am now considering, there was therefore no difference of opinion between my learned brother and myself.
5. Returning once more to orders rejecting, under Section 407, applications to sue in forma pauperis, I have to cite the case of Ammal v. Nayudu I.L.R. 4 Mad. 323 which supports my view of the law, and shows that an exercise of jurisdiction under that section, when such exercise of jurisdiction is open to the objection of illegality or material irregularity, would form a proper subject of revision by the High Court. Other rulings of the Madras High Court, which are consistent with the same view, were also cited by the learned pleader for the petitioner in this case, but I need not refer to them because they do not bear directly upon the point now under consideration. But in order to illustrate my view, I will suppose an extreme case in which the exercise of revisional jurisdiction would be necessitated in connection with orders under Section 407. Suppose a case in which the lower Court, under serious misapprehension of the law, summarily rejects an application to sue in forma pauperis for reasons other than those presented in Sections 405, 406, or 409, without examining the applicant, and without making any attempt to investigate the merits of the claim or the facts as to pauperism. Would such a case not be a proper subject for revision under Section 622? The order though manifestly illegal and open to the objection of material irregularity could, of course, not be the subject of appeal, and if the argument of the learned Counsel for the opposite party, in this case were to be accepted, such an order could not be made the subject of revision either. And it was said that the order was not a final adjudication, because the latter part of Section 413 leaves it open to the applicant to institute a suit in the ordinary manner--a provision similar to that of Section 56 regarding ordinary plaints. But how is such a suit to be instituted by a man who is an absolute pauper, who, whilst having a right, has suffered an injury, and when he has gone into Court to seek redress, is turned out of it by a summary order rejecting his application in the most arbitrary manner, without any adjudication as to the merits of his claim, and without any trial as to the fact of his pauperism? The law gives him no right of appeal, his indigence disables him from paying the Court-fees, and if the revision al powers of this Court in such an extreme case as I have supposed could not be exercised, the necessary conclusion is that there may exist in British India cases in which there is a right which has been infringed, but for which there is virtually no remedy. But in my opinion our law contemplates no such results, and when it conferred the revisional powers upon this Court, it intended that those powers should be so exercised as to prevent such failure of justice. What I have said furnishes an answer in the affirmative to the general question which was referred to the Full Bench by my brother Oldfield and myself.
6. I now proceed to discuss the second aspect of the question which has been involved in the course of the argument before the Full Bench--a question which goes behind the reference, and relates to the merits of the case itself. In this aspect the present case is not an extreme case of the kind which I have supposed in illustrating the question of principle originally referred to the Full Bench, I have already said that the exercise of the Court's power to reject pauper applications under Section 407 is limited to the grounds specified in the various clauses of that section itself, and the question then which arises here is, whether the learned Subordinate Judge acted legally in rejecting the application in the present case on the ground of limitation. He could have acted only under Clause (c) of Section 407 in rejecting the application, because his judgment contains no finding as to the applicant's pauperism, and proceeds entirely upon the view 'that the applicant's allegations show that he has no right to sue for the property,'--a phrase which adopts almost verbatim the language of the clause to which I have referred. I confess that, at the hearing before the Full Bench I entertained doubts as to whether the expression 'right to sue,' coupled with the phrase 'in such Court,' did not limit the clause to questions relating to cause of action and jurisdiction. I, however, formed no definite opinion, and by the courtesy of the learned Chief Justice I was allowed time to consider the point, and I have arrived at the same conclusion as he and my other learned colleagues have adopted with reference to this particular point. I agree with them in thinking that these phrases must be understood in their broad sense, so as to include, not only questions of jurisdiction, but also such as fall within the purview of Clause (c), Section 54, which lays down that plaints shall be rejected 'if the suit appears from the statement in the plaint to be barred by any positive rule of law.' The law of limitation constitutes 'a positive rule of law' barring civil actions, and Section 28 of the Limitation Act (XV of 1877) lays down that 'at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.' In the present case, which was a suit for possession of property, the learned Subordinate Judge has found that the suit was barred by limitation, and bearing in mind the rule of the limitation law to which I have just referred, I am of opinion that he acted rightly in holding that the applicant's allegations did not show 'a right to sue' in his Court within the meaning of Clause (c), Section 407 of the Civil Procedure Code. Whether his conclusions upon the merits of the case were correct or erroneous is another matter, but he had jurisdiction to adjudicate upon the case, and in the exercise of his jurisdiction he did not act 'illegally or with material irregularity' within the meaning of Section 622 of the Code. If he had acted with such illegality or material irregularity, the Case would, in my opinion, for the reasons already stated, have been a fit one for interference in revision. But here the learned Subordinate Judge appears to have observed all the rules of law provided for such matters, and his judgment shows that he considered the merits of the claim, and disposed of the application after having heard the defendant or the opposite party.
7. For these reasons I formulate my answer to this reference in the following terms:
The Court has powers under Section 622, Civil Procedure Code, to revise an order passed under Section 407, Civil Procedure Code, rejecting an application for permission to sue in forma pauperis, in cases where such rejection has been made by exercising jurisdiction 'illegally or with material irregularity' within the meaning of Section 622, but in the present case the jurisdiction vested in the lower Court, having been exercised without being open to either of such objections, the present is not a fit case for revision under Section 622, Civil Procedure Code.