P. Babu Sah vs V.M. Purushothama Sah

This is an appeal against an order of Mr. Justice Kumara-swami Sastri permitting the plaintiff in C.S. No. 275 of 1924 to sue in forma pauperis.

A preliminary objection has been taken that no appeal lies. In Appasami Pillai v. Somasundra Mudaliar 26 M. 437 it was held that there was no

appeal under the Letters Patent against an order of 4 Single Judge refusing to give leave to appeal in forma pauperis. Although the C.P.C. does not

provide for appeal against orders made under Order XXXIII, Rule 7 an appeal lies under Clause 15 of the Letters Patent against the judgment of

a Single Judge sitting on the Original Side with certain exceptions which do not include the present kind of order. It is argued that the order of the

learned Judge was merely an order upon an interlocutory application which was a step towards obtaining a final adjudication and that it does not

finally dispose of the plaintiff''s right to bring the suit, as it was always open to him to pay the Court-fees and proceed. In our opinion the learned

Judge''s order was not an interlocutory one and we think that the law confers a substantive right on every plaintiff, who has a good case at law but

no means to prosecute it, to sue in forma pauperis and we think, with due respect, that the view taken in Appasami Pillai v. Somasundra Mudaliar

1 M. 437 where such an order was treated as made in the exercise of a discretionary power, was not the correct view to take of the order passed

upon such applications. u/s 592 of the old C.P.C. the words used are: ""Any person entitled...to prefer an appeal, who is unable to pay the fee

required...may...be allowed to appeal as a pauper"". The learned Judges treated these words ""may be allowed"" as vesting in the Court a

discretionary power. But the principle on which that case was decided has been doubted in the Full Bench decision in Tuljaram Row v. Alagappa

Chettiar 8 Ind. Cas. 340 : (1910) M.W.N. 697 and it has now been made quite clear by Order XLIV, Rule 1 of the present Code that such

applications have to be dealt with in the same manner as applications to sue in forma pauperis in the first instance. In Order XXXIII, Rule 7,

Clause 3 the words: ""The Court shall then either allow or refuse to allow the applicant to sue as a pauper."" It can no longer be doubted that it is not

open to the discretion of the Court to allow a person to sue as a pauper if on hearing the evidence the Court finds that he is not a pauper. The final

order of a Judge sitting on the Original Side allowing or refusing to allow a plaintiff to sue as a pauper is in our opinion a judgment under Clause 15

of the Letters Patent.

As to the merits of the present appeal, the defendant filed a counter-affidavit denying the plaintiff''s allegation that he had no means and giving

details as to a number of items of property which belong to him and as to a fraudulent alienation of property in favour of his nephew shortly before

he applied to sue as a, pauper. The plaintiff did not file any reply affidavit. After several adjournments, the matter then came before the Court and

the learned Judge gave leave to the plaintiff to sue as a pauper upon the Government Solicitor stating that he had received a report that the

petitioner was a pauper. The appellant now says in his affidavit that he was prepared to cross-examine the plaintiff and to let in evidence in support

of his allegations. We think that if the Judge was not prepared to act on his uncontradicted affidavit, the defendant should have been given an

opportunity to prove the statements contained in it notwithstanding that the Government did not choose to dispute the alleged pauperism.

Apparently he had no evidence ready at that hearing and he wanted time to produce his witnesses. But it appears that he expected that the other

side would'' ask for an adjournment to file a reply affidavit and that they would not allow his statements to remain uncontradicted. It was

reasonable, therefore, to suppose that if he had applied for time to produce his evidence he would have got an adjournment, and we think that now

he should be given an opportunity of substantiating his allegations. The learned Judge''s order is, therefore, set aside and the case will be remanded

for letting in such evidence as the parties may adduce to prove or disprove the plaintiff''s pauperism and for making a fresh order after considering

such evidence. Costs of this appeal to abide and be provided for in the final order.