Skip to content


T.S. Subbaraya Devai Vs. R. Sundaresa Devai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1933Mad5; 140Ind.Cas.226
AppellantT.S. Subbaraya Devai
RespondentR. Sundaresa Devai
Cases ReferredChhajju Ram v. Neki
Excerpt:
- - this fact being discovered by the court as a good reason for review within the meaning of the privy council decision, i think the subordinate judge had good ground for reviewing his order dismissing the application for adjournment. i am not satisfied that this is a case where i should interfere under section 115 even if there was an irregularity......and not for default the remedy is by way of appeal. but it seems to me that in this case the pauper application was dismissed for default. the subordinate judge did not say that he finds that the plaintiff was not a pauper.4. the next decision referred to, krishnamurthy v. ramayya air 1926 mad 875, where it was held that if a pauper petition was dismissed it does not bar a second application to sue as a pauper. this may be; but it does not touch the present question whether the first pauper petition which was dismissed for default may not be restored. two other eases are referred to: v. ramaraghava reddi v. rajah of venkatagiri : air1927mad355 and alagasundaram pillai v. pichuvier air 1929 mad 757. in the first of these cases it was held that default of appearance was not a reason.....
Judgment:

Ramesam, J.

1. This is a revision petition filed under Section 115, Civil P. C, against an order of the Subordinate Judge of Trichinopoly dated 4th September 1930 by which he restored to file a pauper petition, O.P. No. 7 of 1930, which had been previously rejected on 26th July 1930. The facts of the case may be thus briefly stated. The respondent filed an application for permission to sue in forma pauperis. This application was numbered as O.P. No. 7 of 1930 and it came on for orders on 26th July 1930. The Subordinate Judge passed the following order on that day:

Petitioner had not taken steps even to summon witnesses to prove the incumbrances on his property. There is no satisfactory explanation for not doing so. Petition dismissed.

2. Then there was an application for restoring O.P. 7. On that the Subordinate Judge passed the following order:

I am unable to construe the order of this Court dismissing the petition as one on the merits. No witnesses had been summoned to prove the incumbrances. His pleader was absent and he was unable to say what, really happened in the case. It is brought to my notice that his sister was expected by a later train with the mortgage deeds in question. Mr. Balakrishna Ayyar who appears for the petitioner says that she did turn up that day. Under these circumstances I feel I ought to give him an opportunity to prove his pauperism. The petition will be restored on petitioner paying Rs. 25 to the other side for their costs in one week.

3. The revision petition is against this latter order. The second petition was filed underO. 9, Rule 9 taken with Section 141 and also under Order 47, Rule 1. Mr. Vaidyanatha Ayyar who appears for the petitioner contends that neither provision of law applies to this case and that the petition is not maintainable. Now it seems to me what happened on 26th July was this. The pauper petition stood posted for that day. The vakil for the petitioner was absent. This appears from the later order. The party himself appearing must have asked for adjournment. The Subordinate Judge observed that steps were not taken even to summon witnesses to prove the incumbrances on the property. He was therefore of opinion that there were no grounds for granting adjournment. The application for adjournment was therefore refused. The pauper petition then was dismissed because it was not prosecuted. The petitioner might at least have gone into the witness-box but he did not. So that it seems to me that there were two applications on that day, one, for permission to sue as a pauper and secondly an application to have that matter adjourned. The adjournment application was refused. The other petition merely followed by a consequential order. Now it seems to me that Order 9, Rule 9 taken with Section 141 is applicable in so far as the pauper petition was dismissed for default on the first occasion. In the course of his argument Mr. Vaidyanatha Ayyar referred to the following cases: Pichamma v. Sreeramulu (1918) 41 Mad 286, which refers to the distinction between an order passed under Order 17, Rule 2 and an order passed under Order 17, Rule 3. If a suit is disposed of on the merits and not for default the remedy is by way of appeal. But it seems to me that in this case the pauper application was dismissed for default. The Subordinate Judge did not say that he finds that the plaintiff was not a pauper.

4. The next decision referred to, Krishnamurthy v. Ramayya AIR 1926 Mad 875, where it was held that if a pauper petition was dismissed it does not bar a second application to sue as a pauper. This may be; but it does not touch the present question whether the first pauper petition which was dismissed for default may not be restored. Two other eases are referred to: V. Ramaraghava Reddi v. Rajah of Venkatagiri : AIR1927Mad355 and Alagasundaram Pillai v. Pichuvier AIR 1929 Mad 757. In the first of these cases it was held that default of appearance was not a reason contemplated by Order 47, Rule 1 and that Order 9, Rule 9 was not applicable to execution proceedings. In the second of the case's it was held that Order 9, Rule 9 was not applicable to execution proceedings. The same view was taken in Arunachalam v. Veerappa Chettiar AIR 1931 Mad 656. In this case we are not concerned with an execution application but with an application for permission to sue in forma pauperis. It may be that even to such an application Order 9, Rule 9 by itself is not applicable but Order 9, Rule 9 taken with Section 141 may be applicable. A similar reasoning will not avail to execution applications according to the three cases abovementioned because execution proceedings are proceedings in suits, and there is no need to refer to Section 141 and Order 9, Rule 9 by itself is not applicable to execution proceedings. I do not think it follows from those three cases that Order 9, Rule 9 does not apply to cases where an application to sue in forma pauperis was dismissed for default. I therefore think that so far as the pauper application was concerned it was dismissed for default land Order 9, Rule 9 taken with Section 141 is applicable to it and that the Subordinate Judge exercised jurisdiction.

5. The other point argued is that Order 47, Rule 1 is not applicable to an order of this kind, i.e., remedy byway of review. It is true that the cases mentioned show that a dismissal for default is not a ground for review under Order 47, Rule 1. But I think the said application may be regarded as one for review of the order dismissing the application for adjournment. When the application for an adjournment was dismissed, he could find no ground for granting an adjournment because all the proper facts were not represented to him. But later on it was mentioned to him that the plaintiff's sister had actually started with the mortgage deeds and had arrived later on in the day. This was a fact not known on 26th July but known to the Subordinate Judge only later on. Now, a review is permissible only on the ground of discovery by the party of other evidence which could not be known to him with due diligence or other sufficient cause. The Privy Council has held in Chhajju Ram v. Neki AIR 1922 PC 112, that the sufficient cause must be at least ejusdem generis with the earlier reason. Now the discovery of a ground by the party is one of the grounds mentioned earlier in the section. The discovery of a reasonable ground for adjournment by the Court later on, I think is a ground ejusdem generis with the earlier reason and the Court had found later on that the party did take some steps, though he had not taken out summons, to get his sister down to the place with all the mortgage documents. This fact being discovered by the Court as a good reason for review within the meaning of the Privy Council decision, I think the Subordinate Judge had good ground for reviewing his order dismissing the application for adjournment. And if that order is set aside, automatically the pauper application becomes restored. So even from the point of view of Order 47, Rule 1 I do not think the order of the Subordinate Judge is irregular.

6. Finally I must consider on the facts of this case even if I am not strictly correct in either of the grounds mentioned by me above, I am not bound to exercise jurisdiction under Section 115 except in cases where not doing so will cause grave injustice. I am not satisfied that this is a case where I should interfere under Section 115 even if there was an irregularity. For all these reasons I decline to interfere with the order passed by the learned Subordinate Judge and dismiss the revision petition with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //