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Sumatra Devi, Mt. Vs. Hazari Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1930All758
AppellantSumatra Devi, Mt.
RespondentHazari Lal and anr.
Excerpt:
.....by not enquiring into the application on the merits, has also acted without jurisdiction in dismissing it on a ground not covered by rule 5 and has acted with material irregularity in the exercise of its jurisdiction because the plaintiff has been given no opportunity to show that she was a pauper or that she had really a good case. it is possible that the learned judges in that case considered that there was not a good ground for interference in revision. it is not known whether the application had been dismissed by the court of first instance on the ground that the applicant had failed to establish that he was a pauper within the meaning of the explanation to rule 2, order 33, civil p. he can sue in the ordinary way like anybody else and to my mind the case is..........issue on a question of jurisdiction was a case decided within the meaning of section 115. that issue, if decided in the negative, determined the proceedings in that court. but it is after all only a preliminary issue arising in a suit. although the plaintiff cannot, after the determination of that issue, sue in that court, he can still sue in the proper court which has jurisdiction. if the decision of an issue that the court has no jurisdiction is not a case decided, i am unable for my part to see how it is possible to hold that the decision of a preliminary issue that the plaintiff is or is not a pauper is a case decided.13. with the utmost respect i would point out that the decision of the question as to whether an applicant is entitled to sue as a pauper is not the decision of a.....
Judgment:

Sulaiman, J.

1. This is an application for revision by the plaintiff from an order of the Subordinate Judge dismissing her application for leave to sue in forma pauperis. The learned Judge has dismissed the application on two grounds:

(1) That the case is 'apparently founded on weak grounds' i.e., 'the case is weak on merits'; and

(2) that the Government pleader intimated his intention to dispute the allegations of the applicant's pauperism.

2. The Court did not proceed to enquire as to whether the plaintiff was in reality a pauper or not, but merely considered her case to be weak on the merits, although the time for the production of her evidence had not yet arrived. The ground for the dismissal of the application is not that the application was no6 properly framed and presented or that the applicant was not a pauper or that she had acted in any way fraudulently, or that her allegations showed no cause of action or that she had entered into an agreement with another person who has obtained an interest in the subject-matter of the suit. His opinion that the case was weak on the merits is not tantamount to holding that the plaint itself discloses no cause of action. Thus the learned Judge has proceeded entirely outside the scope of Order 33, Rule 5, which gave him jurisdiction to dismiss the application. When the case was not covered by that rule it was the duty of the Court, under Rule 6, to fix a day for receiving evidence as regards her pauperism. The Court could not reject the application merely because the Government pleader was prepared to contest it. It is therefore perfectly clear that the Court has refused to exercise jurisdiction by not enquiring into the application on the merits, has also acted without jurisdiction in dismissing it on a ground not covered by Rule 5 and has acted with material irregularity in the exercise of its jurisdiction because the plaintiff has been given no opportunity to show that she was a pauper or that she had really a good case. The order of the Court below therefore cannot be justified in any way.

3. A preliminary objection however is taken on behalf of the respondent that this Court has no jurisdiction to interfere in revision. It is contended that the order passed by the Judge is an interlocutory order and therefore it is not a case decided within the meaning of Section 115, Civil Procedure Code and that therefore no revision at all lies to this Court. The learned advocate concedes that prior to the decision in Budhu Lal v. Mewa Ram A.I.R. 1921 All. 1 there were various cases of this Court in which the High Court had interfered in revision when an application for leave to sue in forma pauperis had been rejected and there were proper grounds for interference. I may in this connexion refer to the case of Malik Muhammad, Ayab v. Muhammed Mahmud [1910] 32 All. 623 where Karamat Husain and Chamier, JJ., drew a distinction between the case where the application for leave to sue in forma pauperis was dismissed and the case in which it was granted. The contention however is that, as a result of the pronouncement by the Full Bench no revision now lies. Reliance is strongly placed on the case of Shanker Ban v. Ram Deo : AIR1926All446 , which is cited as an authority for the proposition. It is possible that the learned Judges in that case considered that there was not a good ground for interference in revision. But if they intended to lay down that the High Court has no jurisdiction to interfere in revision if an application for leave to sue as a pauper has been dismissed, no matter however illegal or without jurisdiction the order may be, that opinion is certainly contrary to other cases of this Court which were decided subsequent to the same Full Bench, In Shauran Bibi v. Abdus Samad A.I.R. 1923 All. 577, the High Court did interfere in revision and set aside an order dismissing an application for leave to sue as a pauper. In a case somewhat similar on facts to the case before us, a single Judge of this Court also interfered in revision: see Lachmi v. Ram Bahadur : AIR1925All275 .

4. It seems to me that the case of Budhu Lal v. Mewa Ram A.I.R. 1921 All. 1 is no authority for the broad proposition that no revision lies from any order which may be called an interlocutory order, much less for the proposition, that, even if an application for leave to sue in forma pauperis has been dismissed and so far as the plaintiff is concerned his case is at an end, no revision lies. Rafique and Walsh, JJ., were of opinion that a revision lay from even an interlocutory order, which would include even the decision on one issue in the case. Piggot, J., with whom Gokal Prasad, J., agreed, held that no revision would lie from an interlocutory order when the case was still pending. He distinguished some of the cases cited before the Full Bench on the ground that they dealt with the record of cases which had beyond question been decided, having been finally disposed of and struck off the pending file of the subordinate Court concerned; and finally concluded that:

the order against which this application in revision has been filed is merely a finding by the trial Court on one out of several issues arising in a suit which is still pending... the record before us is that of a pending suit and not the record of any case which has been decided.

5. Ryves, J., confined his judgment within very narrow limits. To quote his own words:

the only question which I propose to answer in this case is whether the decision of a single issue by a subordinate Court in a suit which is still pending in that Court (the italics are by the learned Judge himself) is a case decided.... My answer is confined strictly to the precise point we have to decide. The referring order I think is perhaps framed too widely, though I myself was chiefly responsible for its wording,

6. Having put before him this narrow question, his conclusion was that there was no revision from a mere finding. It is noteworthy that in that case the Court had merely expressed an opinion on one of the several issues which arose in the case; and the finding on the issue of jurisdiction being in favour of the plaintiff, the Court was still seized of the case and proposed to proceed with the trial of the remaining issues. Thus a revision had been preferred merely from a finding on an isolated issue in the suit. In that view, no case had really been decided but an opinion had been expressed containing a finding on that issue. As the opinion of Ryves, J., alone turned the scale, the Pull Bench is only authority for the proposition that no revision lies from a mere finding, even though that finding may relate to the question of jurisdiction. That case is no authority for the broader proposition that no revision will ever lie from an order which is merely an interlocutory one. In Mahadeo Sahai v. Secy. of State 20 A.L.J. 55, Piggot, J., himself did not consider that such a result necessarily followed from his judgment in the Pull Bench case.

7. It may further be pointed out that when the matter is altogether at an end and the plaintiff is entirely out of Court because her application has been dismissed, the order, although not a decree cannot be, strictly speaking, treated as a mere interlocutory order in the course of the trial of a pending suit. So far as the plaintiff is concerned her case has been completely disposed of, and if the Court has acted without jurisdiction or with material irregularity in the exercise of it, the plaintiff would be without any remedy unless the High Court can interfere and help her. I have, therefore, no hesitation in saying that the Pull Bench case is no bar to our interfering in revision in this case.

Niamatullah, J.

8. The facts out of which the present revision has arisen have been fully stated by my learned brother. I need not recapitulate them. I entirely agree with his conclusions and the reasons on which they proceed. I desire to make a few observations to emphasize his view that the revision is maintainable.

9. The case of Shanker Ban v. Ram Deo : AIR1926All446 has been pressed on our attention in Support of the argument that no revision can, under any circumstances, lie from an order dismissing an application for leave to sue as a pauper under Order 33, Civil P.C. The proposition contended for is so widely put that it is necessary to examine the provisions of Order 33, Civil P.C., and the Pull Bench case of Budhu Lal v. Mewa Ram A.I.R. 1921 All. 1 on which the case quoted above proceeds. An application for leave to sue as a pauper is to be either rejected or granted. If any of the grounds specified in Rule 5 of that order exists the application for leave to sue as a pauper must be rejected. The proceedings, so far as they relate to that application, terminate, and if court-fee is paid, the proceedings in the suit will begin. Similarly, if the application for leave to sue as a pauper is granted under Rule 8 it is to be registered as a plaint, and the proceedings in the suit will commence. I do not express any opinion as regards the question whether if an application for leave to sue as a pauper is granted, a definite proceeding should be considered to terminate with the order granting such application so as to amount to a 'case' having been decided: but if the application for leave to sue as a pauper is rejected. I entertain no doubt that a definite 'case' should be deemed to have ended with the order of the Court rejecting the application to sue as a pauper, because if court-fee is not paid subsequently, the claim of the pauper cannot be proceeded with, and if a revision is otherwise entertainable it cannot be contended that a 'case' has not been decided.

10. In Budhu Lal v. Mewa Ram A.I.R. 1921 All. 1 Piggott, J., whose conclusions were adopted by two other learned Judges, has attempted to define the word 'case' as it occurs in Section 115, Civil P.C. He observes at p. 572 of the report:

The word 'case' is therefore the more comprehensive expression of the two; but while in Order 14, Rule 2. it is used as if practically synonymous with 'suit,' I am confident that instances can be quoted of its use where it would not at least include a suit. If this view is correct it follows that, whereas all 'cases' are not 'suits,' every 'suit' is at least a 'case.' from this I would go on to conclude that, where the 'case' in which the revisional jurisdiction of the High Court is invoked happens to be also a 'suit' then this suit is itself the 'case' referred to in Section 115, Civil P.C., which requires to be decided before the record is called for. To put the point in another way: holding that the word 'case' in the Civil Procedure Code always includes a 'suit', I read the relevant portion of Section 115 just as if it ran, 'may call for the record of any suit or other description of cases which has been decided.

11. A dismissal of an application for leave to sue as a pauper is obviously not the decision of the suit which did not begin till then. There can be no doubt that the proceedings started by the application did come to an end. According to the definition of the word 'case' given in the passage quoted above it must be considered to be a 'case' which has been decided.

12. According to the view taken by the learned Judges forming the minority of the Full Bench (Rafique and Walsh, JJ.) there can be no question that a proceeding of the kind we are concerned with comes within the meaning of Section 115, Civil P.C. The learned Judges who decided the case of Shanker Ban v. Ram Dei : AIR1926All446 have held that the rejection of an application for leave to sue as a pauper is not a decision of a 'case' within the meaning of Section 115, Civil P.C. The facts of the case which the learned Judges were called upon to consider are not given in the report. It is not known whether the application had been dismissed by the Court of first instance on the ground that the applicant had failed to establish that he was a pauper within the meaning of the explanation to Rule 2, Order 33, Civil P.C., or whether it had been dismissed on any other ground referred in Rule 5. The learned Judges assumed that the Full Bench case, to which reference has already bean made, was applicable to the particular case before them. They observed that

the refusal to sue as a pauper does not determine anything in the suit. It is merely the decision of a preliminary issue arising in or anterior to the suit. It determines nothing except that the plaintiff cannot sue as a pauper. He can sue in the ordinary way like anybody else and to my mind the case is indistinguishable from the case of Budhu Lal v. Mewa Ram A.I.R. 1921 All. 1, in which a Full Bench of this Court finally endeavoured to set at rest a point upon which there had been considerable controversy. The question there was whether a preliminary issue on a question of jurisdiction was a case decided within the meaning of Section 115. That issue, if decided in the negative, determined the proceedings in that Court. But it is after all only a preliminary issue arising in a suit. Although the plaintiff cannot, after the determination of that issue, sue in that Court, he can still sue in the proper Court which has jurisdiction. If the decision of an issue that the Court has no jurisdiction is not a case decided, I am unable for my part to see how it is possible to hold that the decision of a preliminary issue that the plaintiff is or is not a pauper is a case decided.

13. With the utmost respect I would point out that the decision of the question as to whether an applicant is entitled to sue as a pauper is not the decision of a preliminary issue arising in any suit which, as pointed out above, would come into existence only if the application to sue as a pauper is granted and registered as a plaint. If the word 'issue' used by the learned Judge is to be taken in the sense in which it has been used in the Civil Procedure Code it would arise only when a material fact affirmed by the plaintiff is denied by the defendant-a stage which would be reached long after the permission is granted or the application is otherwise registered as a plaint. The question as to whether an applicant is entitled to sue as a pauper is not a question arising in the suit at all. It is a question anterior to the commencement of the suit. The decision of that question merely determines the right of the plaintiff to be exempted from the payment of court-fee. The law in this respect has, in my opinion, been correctly laid down by Chamier and Karamat Husain, JJ., in Muhammad Ayab v. Muhammad Mahmud [1910] 32 All. 623. Chamier, J., expressed himself as follows:

It seems to be quite clear that the 'case' must have been decided before the High Court can interfere in revision.... But giving the word 'case' the widest meaning... I am unable to hold that the order against which this application for revision is presented decided any 'case.' It appears to me that there is a clear distinction between the case of an application for permission to sue or appeal in forma pauperis being dismissed or rejected and the case in which a similar application is allowed. In the former it may be said that the case had been decided, while in the latter the order appears to be merely interlocutory.

14. The learned Judges had to deal with a case in which leave had been granted. In revision the order granting such leave was questioned. The suit instituted by the pauper plaintiff was pending. There is some justification for the view that no 'case' under those circumstances could be said to have been decided; but the learned Judges took care to point out that if the application for leave to sue as a pauper had been dismissed the same considerations could not be applicable. In commenting upon the observations quoted above the learned Judges who decided the case of Shanker Ban v. Bam Deo : AIR1926All446 says that the distinction drawn is 'subtle.' It is submitted with very great respect that the distinction is obvious and real and has been clearly set forth by those learned Judges. If the application to sue as a pauper is dismissed, no further proceedings can continue; and if the application to sue as a pauper was the foundation of a 'case' it must be deemed to have terminated with the order of dismissal; whereas, if the application had bean granted, the proceedings may be taken to continue. In the latter case according to the learned Judges who decided the case of Muhammad Ayab v. Muhammad Mahmud [1910] 32 All. 623, proceedings in the case continue and no case can be deemed to have been decided.

15. Our difficulty in fully appreciating the reasons which prompted the decision in Shanker Ban v. Ram Deo : AIR1926All446 mainly lies in the total absence of facts of the particular case which the learned Judges had to decide. The view taken by them might have been perfectly justifiable with reference to the peculiar circumstances of that case; but the observations occurring in the judgment reported, which are founded on in the arguments before us, are general and, apart from the facts of the peculiar case may be open to criticism. Were it not for a number of cases in which a contrary view has been taken and which have been referred to by my learned brother this would have been a fit case for reference to a Full Bench; but in view of those cases in which the question we have to decide was directly raised and considered this procedure is unnecessary. We are at liberty to follow the view taken by one Division Bench in preference to that taken by another Division Bench.

16. For these reasons I have no hesitation in agreeing with the conclusions arrived at by my learned colleague, and concur in the order which he proposes to pass.

17. We allow this revision, set aside the order of the Court below and send the case back to that Court with directions to proceed with it according to law as provided under Order 33.


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