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M.A. Joseph Vs. Varadarajan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1969)2MLJ234
AppellantM.A. Joseph
RespondentVaradarajan and ors.
Cases ReferredGovinda Pathiyar v. Ananthanaroyana I.L.R.
Excerpt:
- ordert. ramaprasada rao, j.1. the plaintiff is the petitioner in this civil revision petition. he filed o.s. no. 24 of 1965 on the file of the court of the subordinate juge, salem, for a decree for specific performance of a contract, dated 23rd april, 1960, for a transfer or release of the 'a' schedule property, of which it is claimed that the plaintiff was in possession from 5th july, 1963, including the flour mill situate thereon. as the plaint was insufficiently stamped, the petitioner was directed on a check-slip by the court-fee examiner to pay an additional court-fee of rs. 613. the petitioner thereafter applied, under order 33, rule 2, civil procedure code, in i.a. no. 300 of 1967 in the main suit, for permission to continue the suit in forma pauperis. on the respondent objecting.....
Judgment:
ORDER

T. Ramaprasada Rao, J.

1. The plaintiff is the petitioner in this Civil Revision Petition. He filed O.S. No. 24 of 1965 on the file of the Court of the Subordinate Juge, Salem, for a decree for specific performance of a contract, dated 23rd April, 1960, for a transfer or release of the 'A' Schedule property, of which it is claimed that the plaintiff was in possession from 5th July, 1963, including the flour mill situate thereon. As the plaint was insufficiently stamped, the petitioner was directed on a check-slip by the Court-fee Examiner to pay an additional Court-fee of Rs. 613. The petitioner thereafter applied, under Order 33, Rule 2, Civil Procedure Code, in I.A. No. 300 of 1967 in the main suit, for permission to continue the suit in forma pauperis. On the respondent objecting to the said course the lower Court enquired into the pauperism of the petitioner and the other merits in the application and came to the conclusion that the petitioner was not a pauper as he was running a flour mill and earning income thereon and was in possession of the properties which were the subject-matter of O.S. No. 24 of 1965; that the cause of action for the suit is barred by limitation, as the suit was filed on 3rd February, 1965, to enforce an agreement dated 22nd April, 1960; that there was no proper presentation of the pauper petition in accordance with Order 33, Rules 2 and 3 (1) of the Code of Civil Procedure. This Order was made on 3rd August, 1967, and the petitioner was given a week's time for payment of the deficit Court-fee. From time to time, to pay the additional Court-fee was extended till 31st August, 1967. As the petitioner failed to comply with the above direction, as a consequence thereof, O.S. No. 24 of 1965 was dismissed and the plaint therein was rejected on 1st September, 1967. Aggrieved primarily against the basic order dated 3rd August, 1967, in I.A. No. 300 of 1967, the petitioner has filed the present Civil Revision Petition.

2. On the merits it was submitted that the lower Court went wrong in taking into consideration the subject-matter of the suit for assessing the capacity of the petitioner to pay the additional Court-fee. Again, the plaint allegation that the petitioner was in possession of the suit property since 1963 pursuant to the agreement, was not considered and referred to by the learned Judge, when he found that the cause of action was barred on the date of institution of the suit. On the other conclusion that certain prescribed formalities were not observed in the matter of the presentation of the pauper application, it was submitted that they were too trivail and faded into insignificance when once the petition was taken up, fully heard and adjudicated upon. In fact, even Mr. T.R. Srinivasa for the respondent does not seriously contend that the order of the lower Court has to be sustained on the last ground On the two other surviving grounds on which this Civil Revision Petition is sought to be rested, learned Counsel for the respondent would say that prima facie, the cause is barred and there has been a suppression of details by the petitioner and therefore the lower Court was right in rejecting the application. I shall refer to the contentions on merits, of either Counsel after noting the more formidable legal objection of the respondent as to the maintainability of this Civil Revision Petition by this Court.

3. The two legal contentions of Mr. T.R. Srinivasan learned Counsel for the respondent can now be noticed. In the first place it is stated that as the application was rejected under Order 33, Rule 5 (d-1) of the Code and such an order of rejection is expressly appealable under Order 43, Rule 1 (n), the Revision Petition under Section 115 of the Code of Civil Procedure is not maintainable. Secondly, it is argued that the later order of the Court dated 1st September, 1967, being the effective order and it being one which satisfies the pre-requisites of Section 2 (2), Civil Procedure Code, the order is a decree against which an appeal alone is competent and not a Civil Revision Petition. The present Revision Petition against the earlier order cannot be maintained, as it is virtually superseded or mereged in the later decree of Court dated 1st September, 1967, when the plaint in O.S. Nc. 24 of 1965 was rejected. Reliance was placed on the ratio in Satyanarayanacharyulu v. Ramalingam I.L.R. : AIR1952Mad86 . Mr. Sivamari, arguing contra, states that the ratio in the Full Bench case is not applicable at all and drew support for his contention that the revision to this Court under Section 115, Civil Procedure Code, was competent from the decisions reported in Munia v. Kesava : AIR1955Mad467 , Govinda Pathiyar v. Ananthanarayana I.L.R. (1956) Mad. 774 : (1955) 2 M.L.J. 665 : A.I.R. 1956 Mad. 441, S. S. Khanna v. F. V. Dillon : [1964]4SCR409 , and Jagannatha Prasad Gupta v. Ranganatha Konar (1966) 1 M.L.J. 451.

4. The jurisdiction exercised by the High Court under Section 115 of the Code of Civil Procedure is wholesome, supervisory and visitiorial. The High Court has the power in the circumstances set out in the section to correct errors in orders of Courts subordinate to it and 'in which no appeal lies thereto '. The parenthesis is of considerable import and significance. The interdict against the maintainability of a Civil Revision Petition under Section 115, Civil Procedure Code, is only in cases where there is a provision for appeal to the High Court against the impugned order. The availability of a remedy by way of an appeal to the District Court or any other subordinate Court, is not a general bar to the entertainability of an application for revision. It cannot invariably be said as a matter of routine that the High Court has no jurisdiction to entertain a petition in revision under Section 115, on the sole ground that another remedy is open, except it be an appeal to the High Court itself. Ordinarily the High Court may refuse ultimately the petition as it has the option to do under Section 115, which says that the High Court may make such order as it thinks fit. This does not mean that the High Court cannot consider such a petition. Even so in a case like the one under consideration, where a part of the order passed under Order 33, Rule 5 (d-1) is appealable under Order 43, Rule 1 (nn), Section 115 does not compulsorily envisage the filing of such an appeal to the District Court or for the matter of that, even if such an appeal is preferred, it is only the order of the District Judge that can be revised. The rule of practice set out in the section enables the High Court to entertain a revision against the original order, even though an appeal is provided to the District Court, provided no appeal lay against the appellate order of the District Judge. It is so in this case. Having regard to the powers of the High Court in Section 115, Civil Procedure Code, which empowers it to call for the record of any case which has been decided by any subordinate Court, if no appeal lies thereto to the High Court, it appears that such a subordinate Court referred to therein would include a trial Court as well. The availability of an appeal against the order to the higher hierarchy but not to the High Court, will not make any difference. Shah, J., speaking for the majority, after interpreting the word ' case . in Section 115, Civil Procedure Code, as including a part of a case, in S. S. Khanna V. F. V. Dillon : [1964]4SCR409 , observed as follows ::.there is no escape from the conclusion that revisional jurisdiction of the High Court may be exercised irrespective of the question whether an appeal lies from the ultimate decree or order passed in the suit. Any other view would impute to the Legislature an intention to restrict the exercise of this salutary jurisdiction to those comparatively unimportant suits and proceedings in which the appellate jurisdiction of the High Court is excluded for reasons of public policy. Nor is the expression ' in which no appeal lies thereto ' susceptible of the interpretation that it excludes the exercise of the revisional jurisdiction when an appeal may be competent from the final order. The use of the word ' in '. is not intended to distinguish orders passed in proceedings not subject to appeal from the final adjudication, from those from which no appeal lies. If an appeal lies against the adjudication directly to the High Court, or to another Court from the decision of which an appeal lies to the High Court, it has no power to exercise its revisional jurisdiction, but where the decision itself is not appealable to the High-Court directly or indirectly, exercise of the revisional jurisdiction by the High Court would not be deemed excluded.

Mr. T. R. Srinivasan had to concede that his first contention cannot stand, in view of the categorical statement of law propounded by the Supreme Court as above.

5. The second contention has raised considerable argument from the Bar, and the arguments of both the Counsel appearing on either side were indeed instructive and impressive. Mr. T.R. Srinivasan contends that the lower Court having ultimately rejected the original plaint in O.S. No. 24 of 1965 on its file based upon its earlier order, it is not open to the petitioner to canvass the correctness of the earlier order by bypassing or ignoring the later order. Strong reliance was placed on the ratio of the Full Bench in Satyanarayanacharyulu v. Ramalingam I.L.R. : AIR1952Mad86 , That was a case where a Civil Revision Petition was filed against an order rejecting the plaint which followed, an order for payment of additional Court-fee which was not complied with. Rajamannar, C.J., with whom the other two learned Judges agreed, was of the view that the order rejecting the plaint was to be deemed to be a decree within the meaning of Section 2 (2) of the Code of Civil Procedure and hence appealable and no revision will lie under Section 115, Civil Procedure Code. In the instant case also, the plaint was rejected. The petitioner, prudently has not filed a revision against the final order of rejection of the plaint dated 1st September, 1967, but has chosen to file this revision against the order in I.A. No. 300 of 1967 in the said suit, dated 3rd August, 1967. That order is a self contained order and which can act on its own vigour and force. By this order the plaint was not rejected, nor did the order constitute a formal expression of adjudication, which can be said to have conclusively 'determined the rights of parties to the action with regard to any matter in controversy in the suit. Therefore the order challenged before me cannot be deemed to be a decree as defined in the Code. Mr. T.R. Srinivasan however relying upon certain observations in the Full Bench case urged that as the Revision Petition in this case was filed after the order of rejection of the plaint, it is incompetent. A similar contention which was raised in Murthiraju v. Subbaraju (1944) 1 M.L.J. 328 : I.L.R. (1944) Mad. 626, was repelled by the learned Judges thus:

The mere fact that an appeal would lie later from the consequential order passed by the Subordinate Judge if the stamp fee were not paid was no ground for refusing to entertain the petition.

The observation of the later Full Bench pressed into service by Mr. T. R. Srinivasan is ' that in the Full Bench case in Murthiraj v. Subbaraju (1944) 1 M.L.J. 328 : I.L.R. (1944) Mad. 626, there was no order formally rejecting the plaint before the Revision Petition was filed against the order directing the plaintiff to pay an additional Court-fee '. The (Italicising is mine) Undue stress is placed on the word ' before ' in the above excerpt. But the learned Judges in Murthiraju V. Subbaraju (1944) 1 M.L.J. 328 : I.L.R. (1944) Mad. 626, themselves had to say at the end that the prospect of an appeal being available to the plaintiff against the consequential order, namely, the rejection of the plaint, is no bar for the maintainability of the Revision Petition. In the light of this statement, it is difficult to accept the contention of Mr. T. R. Srinivasan that the word ' before ' used by Rajamannar, C.J. in Satyanarayanacharyulu v. Ramalingam I.L.R. : AIR1952Mad86 , governs the issue and that it denotes the time factor as to when the revision has to be filed. The word has been used in a generic sense and not to import into it a special significance, which the learned Judges who decided the earlier Full Bench case did not comprehend.

6. Viewed in a different perspective also, the contention of Mr. Sivamani is well-founded. The order of the lower Court dated 3rd August, 1967, is a separate and distinct order which is the source for the later order dated 1st September, 1967. The later order springs from the earlier order. No doubt the later order is in the nature of a decree under Section 2 (2) of the Code. Nevertheless it flows from the former order, which has an independent facet of its own and therefore susceptible to the visitorial jurisdiction of this Court under Section 115. It has to be remembered that an application to sue in forma pauperis contains allegations ordinarily rendered in a plaint but it is not a plaint as is ordinarily understood. To equate such a petition to a plaint would be to ignore the express language in Order 33, rule 8, Civil Procedure Code, which reads

where the application is granted, it shall be numbered and registered and shall be deemed to be the plaint in the suit.

7. In the case under consideration, no doubt the lis began with a plaint as is commonly understood. But the moment the application to continue the suit in forma pauperis was made, as the petitioner was unable to pay the additional Court-fee called, it ceased to be a plaint, but in fact became a plaint in the embryo. No direct authority has been placed before me for the proposition that the rejection of an application in forma Pauperis consequent upon non-payment of Court-fee bars the applicant from proceeding with a revision or appeal as the case may be, filled to question an earlier order relating to pauperism or absence of cause of action, etc. This view of mine gains support from the ratio in Govinda Pathiyar v. Ananthanarayana I.L.R. (1956) Mad. 774 : (1955) 2 M.L.J. 665 : A.I.R. (1956) Mad. 441. No doubt, in that case no original suit was filed as in this case; only an application under Order 33, was filed. It was thrown out. Ultimately the inchoate plaint was rejected. Govinda Menon, J., speaking for the Bench, observed:

The aggrieved party is not faced with alternative remedies. He has not lost the right to have an appeal against the order holding that the plaint does not show a cause of action, because for non-payment of Court-fee, the application, has been rejected. Moreover, the rejection for non-payment of Court-fee is a consequential one following from the non-compliance of a basic order and if the basis goes, the consequence also disappears.

8. In the above case an appeal was filed against the order of Court dismissing, the application on the ground that it did not show a cause of action. The order was passed on 19th November, 1951. Subsequently the plaint was rejected because the Court-fees, as directed was not paid. This was on 8th December, 1951-Thereafter, on 25th December, 1951, the appeal, as stated above, was filed. It was held that the appeal was competent. In the instant case by the earlier order the application to sue as a pauper was rejected on various grounds and time was granted to pay additional Court-fee. By a later order the embryo-plaint was rejected. Whatever may be the effect of the later order and whatever may be the remedies available to the aggrieved party to correct the later order, the earlier order over which no appeal lay to the High Court, is certainly canvassable in revision under Section 115, Civil Procedure Code. The fact that at the inception a regular suit was filed does not matter. The ratio in Govinda Pathiyar v. Ananthanaroyana I.L.R. (1956) Mad. 774 : (1955) 2 M.L.J. 665 : A.I.R. 1956 Mad. 441, is still applicable to the facts of the instant case. Even the second contention of Mr. T. R. Srinivasan fails.

9. It now remains for me to consider the merits of the order of the learned Subordinate Judge of Salem. He found that the petitioner is not a pauper on the ground that there has been suppression of details as to properties owned by him. what was disclosed is obviously conceded to be the properties which are the subject-matter of the suit. Such a non-disclosure cannot be said to be mala fide. T. R. Srinivasan however says that there is sufficient income from the flour mill which the petitioner is running from which he could pay the Court-fee. There is no clinching evidence on this. No report of the Government is available on record to show that the petitioner is not a pauper. The second ground which prompted the lower Court to dismiss the application to sue in forma pauperis is that the cause of action is barred by limitation. He has not adverted however to the emphatic averment in the plaint that the petitioner is in possession of the suit property pursuant to the agreement and in part performance thereof. This is a matter which has to be considered elaborately in trial. Prima facie it does not appear to me that the claim is in any way barred by limitation. The third ground that there were certain irregularities in the matter of the presentation of the petition can easily be disposed of since even the respondent before me does not urge that it is a serious matter. Having thus found that the order of the Court below is wrong in that it ought to have allowed the petitioner to sue as a pauper and that prima facie the cause of action is not barred by limitation, this Civil Revision Petition has to be allowed. There will be no order as to costs.


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