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Mahadeo Sahai Vs. Secy. of State and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1932All312; 140Ind.Cas.125
AppellantMahadeo Sahai
RespondentSecy. of State and ors.
Excerpt:
.....it is debatable whether an order rejecting, an appeal for the appellant's failure to furnish security for costs of the respondent amounts to an affirmance of the decision of the court below. 59. it has been held in this case that an order rejecting an appeal for failure to furnish-security for costs is not an order affirming the decision of the court below within the meaning of the last paragraph of section 110, nor is such an order a final order passed on appeal' within the meaning of section 109, civil p. ' 14. similarly, we are inclined to think that the words 'final order passed on appeal' in section 109(a) may admit of a broader construction, so as to include an order directing the dismissal of the appeal, consequent upon the appellant's failure to furnish security for the..........2,500 within three months of this date.' it may be mentioned that rs. 2,500 did not represent the costs of the appeal only but included also the costs allowed by the trial court : vide affidavit of dwarka prasad, dated 23rd october 1930, para. 12.11. the plaintiff-appellant moved this court to revise the order dated 5th december 1930. by its order, dated 11th march 1931, this court refused to revise the order in question but granted the plaintiff a further period of three months to furnish the required security. the plaintiff-appellant failed to furnish the required security and his appeal was dismissed with costs on 17th june 1931. it is against the order of this date that the plaintiff prays for leave to appeal to his majesty in council.12. the value of the subject-matter of the-suit.....
Judgment:

Mears, C.J.

1. This is an application, for leave to appeal to His Majesty in Council from an order of this Court, dated 17th June 1931. The applicant prayed for a certificate under Section 109, Civil P.C. An ancillary prayer is contained in para. 17 of his petition which, is somewhat curious:

That the applicant solicits the favour of appointing a receiver and the printing and legal charges of both the parties be realized from the estate and justice be done to the case.

2. The subject-matter of this suit consisted principally of a property in Taluqa. Imampur, Pergana Ungli, in the District, of Jaunpur.

3. After various defeats in the Revenue Court going back nearly 15 years the applicant had instituted a suit in the Court of the Additional Subordinate Judge of Jaunpur for declaration of title to the aforesaid properties. The suit was directed against the Secretary of State for India and against Mt. Tula and Mt.. Sumitra. The plaintiff-applicant had asked for leave to sue in forma pauperis. Upon a contest raisad in the case, the Court held that he was not a pauper. The result was that his application to sue as pauper was dismissed with costs in favour of the Secretary of State and. the other two defendants.

4. The plaintiff then instituted a regular suit on payment of the proper court-fee. This suit was numbered and registered as 57 of 1929.

5. The material allegations on which the claim was founded were that the property in Taluqa Imam pur was owned by his materrfal grandfather, Rai Hingan Lall who acquired the property, for loyal and meritorious ' services during the Sepoy Mutiny under a grant by the Government, dated 9th June 1860, that after the death of Hingan Lall, this property was settled upon Rai Daya Kishen, his son, that after the latter's demise, his son Rai Madan Makund became the owner, that the last named person died without leaving any issue, that Mt. Tula and Mt. Sumitra were not his wedded wives and that the property had devolved upon the plaintiff by force of the Crown Grants Act and the Pensions Act.

6. The defendants contested the suit upon the following grounds:

7. (a) The property was acquired by Eai Daya Kishen under the grant, dated 9th June 1860, and devolved upon Mt. Tula and Mt. Sumitra, who were the widows of Rai Madan Makund and that the plaintiff had no place in inheritance, (b) Defendants 2 and 3 were in possession of the property; and the suit for a mere declaratory relief was barred by Section 42, Specific Belief Act; and (c), the plaintiff's claim was barred by Order 33, Rule 15, Civil P.C.

8. These pleas found favour with the trial Court and the plaintiff's claim was dismissed on 14th May 1930.

9. The plaintiff preferred an appeal to this Court, which was duly admitted on 21st July 1930 and was registered as First Appeal No. 378 of 1930.

10. On 23rd October 1930, two of the respondents, namely, Mt. Tula and Mt. Sumitra applied to this Court under Order 41, Rule 10, Civil P.C., that the plaintiff-appellant be directed to furnish security for the costs of this Court as also of the Court below for a total sum of Rs. 2,500. This application was supported by an affidavit sworn by Dwarka Prasad in which he brought out very clearly the fact that the sanad, dated 9th June 1860, had been granted to Rai Daya Kishen and not to Rai Hingan Lall and that the plaintiff's suit was bound to fail. It had-also been rightly dismissed by the Court below as the plaintiff had contravened, the imperative provision of Order 33, Rule 15, Civil P.C. The application was heard by a Division Bench which upon a consideration of the application, the affidavits and the judgment of the Court below came to the conclusion that this was a fit-case in which security should be ordered. An order was accordingly made on 5th December 1930, directing the appellant to furnish security for the respondents' costs of this appeal' to the extent of Rs. 2,500 within three months of this date.' It may be mentioned that Rs. 2,500 did not represent the costs of the appeal only but included also the costs allowed by the trial Court : vide affidavit of Dwarka Prasad, dated 23rd October 1930, para. 12.

11. The plaintiff-appellant moved this Court to revise the order dated 5th December 1930. By its order, dated 11th March 1931, this Court refused to revise the order in question but granted the plaintiff a further period of three months to furnish the required security. The plaintiff-appellant failed to furnish the required security and his appeal was dismissed with costs on 17th June 1931. It is against the order of this date that the plaintiff prays for leave to appeal to His Majesty in Council.

12. The value of the subject-matter of the-suit in the Court of first instance was. above Rs. 10,000. The value of the proposed appeal is also above Rs. 10,000. It is debatable whether an order rejecting, an appeal for the appellant's failure to furnish security for costs of the respondent amounts to an affirmance of the decision of the Court below.

13. A preliminary objection has been taken-by the respondents that the order dated-17th June 1931 is not a 'final order' within the meaning of Section 110, Civil P.C., and that an application for leave to appeal from such an order is therefore incompetent. Our attention has been drawn to a decision of the late Court of the Judicial Commissioners of Oudh : In re Badha Kishen v. Jumna Prasad [1910] 13 O.C. 59. It has been held in this case that an order rejecting an appeal for failure to furnish-security for costs is not an order affirming the decision of the Court below within the meaning of the last paragraph of Section 110, nor is such an order a final order passed on appeal' within the meaning of Section 109, Civil P. C. This decision, in our opinion, hinges upon a very narrow and technical construction of Sections 109 and 110. Where an order of this Court dismisses an appeal it has the effect of confirming the decision of the trial Court. It should be noticed that the words in Section 110 are affirms the decision of the Court' and not affirms the decision of the Court on the merits.'

14. Similarly, we are inclined to think that the words 'final order passed on appeal' in Section 109(a) may admit of a broader construction, so as to include an order directing the dismissal of the appeal, consequent upon the appellant's failure to furnish security for the costs of the respondents.

15. The appellant however has founded his application upon Section 109(c), which provides for a right of appeal from any... order, when the case...is certified to be a fit one for appeal to His Majesty in Council. This clause evidently embraces cases other than those provided in Clauses (a) and (b), and the order sought to be appealed need not be a final order passed by a High Court or a final order affirming the decision of the lower Court.

16. We are however of opinion that the application should be dismissed, the applicant having failed to satisfy this Court either that a substantial question of law was involved in the case or that it was otherwise a fit case to appeal to His Majesty in Council.

17. At the earnest request of the applicant we sent for the record of Civil Revision No. 119 of 1920. He wished us to examine the contents of an envelope which contained a petition of the applicant dated 3rd February 1926. We did so and it was found that in para. 4 of this petition the sanad dated 9th June 1SG0 had been reproduced verbatim. The sanad was clearly in favour of Daya Kishen and not in favour of Hingan Lall. The property has devolved upon Mt. Tula and Mt. Sumitra, who have been found to be the widows of Madan Makund and, as such, his heirs. The Court below found that the plaintiff's claim by right of inheritance from Hiugan Lall was absolutely baseless. There is no question of law involved hero. The plaintiff in his petition has not formulated any question of law.

18. We have already seen that the plaintiff had attempted to sue in forma pauperis but that his application had been dismissed with costs. Before instituting the present suit he had not paid the costs incurred by the Government and by the opposite party in opposing his application for leave to sue as a pauper. The provision of Order 33, Rule 15, Civil P.C., was imperative. The Court below was therefore bound to dismiss the suit as being barred by Order 33, Rule 15. It is not clear in which way the plaintiff hoped to get over this fatal defect by his appeal to this Court. We have not been shown on what ground the order of this Court, dated 17th June 1931, dismissing his appeal is open to attack. We have no hesitation in holding that the application now before us is devoid of substance and the case is not otherwise a fit case for appeal to His Majesty in Council.'

19. Let a copy of this order be sent to the applicant by registered post to the address given by him.


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