Parvathi Ammal. vs K.G. Venkateswara Aiyar and Others

Waller. J.

This is an appeal against an order of Krishnan, J., rejecting an application for leave to rile a memorandum of objections in forma pauperis. It is

argued that no appeal lies against such an order. There are, no doubt, some decisions to that effect, e.g. Appasami v Soma-sun''dara ILR (1902)

Mad 437 and Banna Bibi v. Mehdi Hussain ILR (1889) All 375 But the former has since been expressly dissented from in Tuljaram v. Alaqappa

(1910) 21 MLJ 1 and the latter proceeded on a ratio decidendi which is no longer maintainable. The pronouncement of Sir John Edge in Sevak

Jeranchod Bhogilal v. The Dakore Temple Committee (1925) 49 MLJ 25 is also relied on. Speaking for myself, I should welcome any clear cut

definition which would render unnecessary, the discussion which is at present almost inevitable whether a particular order does or does not pass

the test laid down in Tuljaram v. Alagappa ILR (1910) M 1 That test is never particularly easy of application and would be extremely difficult to

apply in a case like this. 1, however, see no reason to consider the very large question raised by that pronouncement. Assuming that there is a right

of appeal against an order like this, I think that we should not interfere. The question is one of the excercise of discretion. That is of course, not the

test of non-appealability, but ""when the determination complained of is merely the result of the exercise of discretion on the part of the Judge in a

matter which was a proper subject for the exercise of that discretion, the appellate Court would rightly decline to interfere."" Desouza v. Coles

(1868) 3 MHCR 384 Here, the Judge had discretion to admit the application, but he thought fit not to exercise it in the appellant''s favour. I think

that we should decline to interfere with his order. The appeal is dismissed without costs. One month for paying the necessary fees.

Devadoss, J.

I agree.