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In Re: Jana Yellamraju and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1935Mad51; 153Ind.Cas.476; (1935)68MLJ51
AppellantIn Re: Jana Yellamraju and ors.
Cases ReferredSaku Bai v. Ganpat I.L.R.
Excerpt:
.....that time was essence of contract. - as regards the usage of the word 'may' in rule 2 of the agency rules he invokes the well established doctrine that in particular contexts, the word 'may' must be understood as importing an obligation and contends that the court is bound to exercise in favour of paupers the privilege intended to be conferred upon them by rule 2. he maintains that under the rules, the appeal must be admitted as a matter of course and no leave of court is necessary at all. a person coming to court as a pauper has the less reason to complain against this construction of the rule so far, at any rate, as appeals are concerned, because he has had one chance of litigating his claim in the court of first instance, and unless we are satisfied beyond doubt that the rule..........that this rule reproduces only some of the provisions of order 33 and order 44, civil procedure code while other provisions are not re-produced and contends that as the civil procedure code is not applicable to the agency tracts, we ought not, in dealing with this case, be guided by the provision in order 44 of the code, which enables the high court to refuse leave to appeal in forma pauperis, unless upon a perusal of the judgment and decree appealed from it sees reason to think that the decree is contrary to law or to some usage having the force of law, or is otherwise erroneous or unjust. he also 3raws our attention to the fact that in the case of appeals from the agent, there is no provision corresponding to order 41, rule 11, civil procedure code. as regards the usage of the word.....
Judgment:
ORDER

1. The question of the effect of Rule 2 of the Agency Rules of 1924 has been argued before us. Mr. Rama Rao lays stress upon the fact that this rule reproduces only some of the provisions of Order 33 and Order 44, Civil Procedure Code while other provisions are not re-produced and contends that as the Civil Procedure Code is not applicable to the Agency Tracts, we ought not, in dealing with this case, be guided by the provision in Order 44 of the Code, which enables the High Court to refuse leave to appeal in forma pauperis, unless upon a perusal of the judgment and decree appealed from it sees reason to think that the decree is contrary to law or to some usage having the force of law, or is otherwise erroneous or unjust. He also 3raws our attention to the fact that in the case of appeals from the Agent, there is no provision corresponding to Order 41, Rule 11, Civil Procedure Code. As regards the usage of the word 'may' in Rule 2 of the Agency Rules he invokes the well established doctrine that in particular contexts, the word 'may' must be understood as importing an obligation and contends that the Court is bound to exercise in favour of paupers the privilege intended to be conferred upon them by Rule 2. He maintains that under the rules, the appeal must be admitted as a matter of course and no leave of Court is necessary at all. We are unable to accede to his contention that this Court ought not to take into consideration the merits of the case at all, in dealing with the question of admitting an appeal without payment of Court-fee. It is true that many of the provisions of Order 33 and Order 44 of the Code have not been reproduced in the Agency Rules and it may also be conceded that in particular contexts the word 'may' imports an obligatory signification. But it will be noticed that in Rule 2 both suits and appeals are dealt with on the same footing and by the same language, and we are unable to persuade ourselves that in the case of suits, considerations of the kind specified in Clauses (c), (a) and (e) of Order 33, Rule 5 of the Code have no place at all. It ought not to be forgotten that the privilege of suing or appealing in forma pauperis is only an indulgence and it is not strange that the rule-making authority has left the matter, in general language, to the discretion of the Court by; the use of the word 'may' so that its discretion maybe properly exercised with due regard to all the circumstances of the case. While on the one hand it is an indulgence to the alleged pauper, it has also to be borne in mind that the insistence on payment of Court-fee is some safeguard against the other party to the litigation being harassed (see per Jenkins, C.J. in Saku Bai v. Ganpat I.L.R.(1904) 28 Bom. 451. The question therefore is not one of public revenue alone but also of making sure that frivolous litigation is not started or continued by a person who has nothing to lose, while the other party will be put to expense in defending himself. These considerations prevent us from holding that the Court is helpless in the matter of admitting suits or appeals in forma pauperis, whatever the merits of the case may be, if once pauperism is established. A person coming to Court as a pauper has the less reason to complain against this construction of the rule so far, at any rate, as appeals are concerned, because he has had one chance of litigating his claim in the Court of first instance, and unless we are satisfied beyond doubt that the rule making authority intended to give him a second chance, without any expenditure on Court-fees, we are not disposed to extend the indulgence unconditionally.


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