Cork Industries and Others vs A. Govindarajulu Mudaliar

S. Ramachandra Iyer, C.J.

(1) This is an appeal from the judgement of Srinivasan, J. who confirmed the order of the Master granting the respondent leave to sue in forma

pauperis. A preliminary question as to the maintainability of the appeal under Cl. 15 of the Letters Patent has got to be considered before we can

take up the merits of the appeal. In M.R. Ananthanarayana Iyer Vs. Rarichan, it was held that an order of a single Judge admitting a pauper appeal

after excusing the delay in the presentation was not a judgement as that enabled the appeal to go on. In Baba Sah v. Purushotham Sah, 47 M LJ

932: AIR 1925 Mad 167, a Bench of this court held that an appeal would lie against the order of a single Judge on the Original Side granting

permission to the plaintiff to sue in forma pauperis. That judgement, in our opinion, is inconsistent with the pronouncement of the Supreme Court in

Asrumati Debi Vs. Kumar Rupendra Deb Raikot and Others, , where two tests have been laid by their Lordships of the Supreme Court to find out

whether an adjudication in a particular proceedings will amount to a judgement within the meaning of Cl. 15 Letters Patent. They are: (1) whether

the order or judgment of the single Judge terminates the suit or proceeding, (2) whether it affects the merits of the controversy between the parties

in the suit itself. None of these conditions can be said to be satisfied in a case where leave to sue in forma pauperis is granted. The suit, far from

getting terminated, by the order allowing the suit to be registered, really keeps the suit pending. The merits of the controversy between the parties

also could not be said to have come for final determination in such proceedings.

(2) The decision in Asrumati Debi Vs. Kumar Rupendra Deb Raikot and Others, related to an order allowing an application for transfer of a suit

instituted in a mofussil Court to the High Court to be tried on its extraordinary original jurisdiction. It was held that such an order would not amount

to a judgment as the suit had not been finally disposed of. It will be noticed that the application in that case before the High Court for transfer of the

suit was an original application which had been put an end to by the order of transfer. Nevertheless the Supreme Court regarded that circumstance

as immaterial as in its view the question whether a particular order of a single Judge amounts to a judgment or not had to be determined on the

basis of its effect on the suit itself. This view has been further elaborated by this Court in Central Brokers Vs. Ramnarayana Poddar and Co., , C.

P. C. for stay of an earlier suit will amount to a judgment within the meaning of Clause 15 of the Letters Patent, it was answered in the negative. In

47 MLJ 932: AIR 1925 Mad 167, the learned Judges proceeded to hold that an order of the kind before us, would amount to a judgment

because an order refusing leave to sue in forma pauperis would amount to a judgment. With great respect to the learned Judges we would lie to

point out that, there is a fundamental difference for the purpose of Cl. 15 Letters Patent, between a case where leave to sue in forma pauperis is

refused and one where leave is granted. If leave were refused, the intended suit will not be on the file of the Court at all; in consequence, so far as

the Court is concerned, there will be a termination of the proceedings. But where leave to sue is granted the position will be different. While,

therefore, we agree with the learned Judges who decided that case that an order refusing to grant leave to sue in forma pauperis would be a

judgment, the same cannot follow in regard to an order granting leave.

(3) It has been argued that as the right to file a suit in forma pauperis is a valuable right given to a poor litigant, not to be harassed by paupers will

equally be a right and an order granting leave to sue in forma paueris should therefore be regarded as deciding the rights of the parties. But this is

only second of the two tests laid down by the Supreme Court. Even so we are unable to appreciate how it can be said that in granting leave to sue

in forma pauperis the right of the defendant can be said to be infringed. It may be that frivolous litigations might be encouraged by indiscriminate

grant of leave to sue in forma pauperis. There can however be no reasonable apprehension on that score as an order granting leave is a judicial

order. The question before us is not so much as to whether the order in a particular case is right or wrong but whether it is a judgment within the

meaning of Cl. 15 of the Letters Patent. On that matter, so long as the effect of the order is not to terminate the proceeding or suit, but on the other

hand the suit is allowed to be proceeded with it cannot amount to a judgment. Ware conscious that in taking this view we are holding contrary to

the view expressed in 47 MLJ 932: AIR 1925 Mad 167. We would ordinarily have referred the matter for consideration by a Full Bench; but that

step is unnecessary in the present case, having regarded to the recent decision of the supreme Court and the Full Bench decision of this Court to

which we have made reference. The order passed by the learned Judge will not amount to a judgment and no appeal can lie against it. The appeal

fails and is dismissed with costs.

(4) Appeal dismissed.