UNION OF INDIA Vs. S S SHANMUGHA NADAR

JUDGEMENT

(1.) THIS is an appeal against the order of Rajagopala Ayyangar J. , dismissing the application made by the appellant before us to dispauper the respondent who was the plaintiff in C. S. No. 130 of 1934. Leave was granted to the respondent to institute the suit as a pauper on the 16th March 1954 and this was after notice to the defendant who is the appellant before us. The present application was taken by the defendant subsequently. The learned judge found that it had not been proved that the value of the property of which the plaintiff was possessed was sufficient to pay the court-fee. He therefore dismissed the application. Hence this appeal by the defendant.

(2.) IN our opinion this appeal must be dismissed on the short ground that it is not maintainable. The order under appeal is not a judgment, within the meaning of clause 15 of the Letters Patent to permit this appeal. Learned counsel for the appellant relied upon the ruling in Baba Sah v. Purushotama Sah, ILR 48 Mad 700 : (AIR 1925 Mad 167), to meet this preliminary objection. No doubt it was held in that case that an order of a Judge of the High Court sitting on the Original side, allowing or refusing to allow a plaintiff to sue as a pauper is a judgment under Clause 15 of the Letters Patent and is appealable. The reasoning of the learned Judges was that such an order was not an interlocutory one made in the exercise of a discretionary power. They observed that the law conferred a substantive right on every plaintiff, who has a good case at law, but no means to prosecute it, to sue in forma pauperis. There is no helpful discussion of the principles laid down in Tuljaram Rao v. Alagappa Chettiar, ILR 35 mad 1, and in subsequent decisions to find out whether an order falls within the category of a judgment under Clause 15 of the Letters Patent. In Krishna Reddi v. Thanikachala Mudalia, ILR 47 Mad 136: (AIR 1924 Mad 90), more or less the same kind of reasoning was adopted by the learned Judges who held that an order of transfer of a suit from a subordinate court to this court was a judgment within the meaning of Clause 15 of the Letters Patent. There are also other decisions which proceed on similar reasoning to which reference need not be made. The Supreme Court, however, in Asrumati Debi v. Rupendra Deb, was not inclined to accept the above reasoning. No doubt in that case only the ruling in ILR 47 Mad 136: (AIR 1924 Mad 90), was expressly referred to; but the decision of the Supreme Court in that case practically meant the overruling of decisions like ILR 47 Mad 136: (AIR :1924 Mad 901 and ILR 48 mad 700 : (AIR 1925 Mad 167 ). Indeed the Supreme Court expressly says that the reasoning in ILR 47 Mad 136: (AIR 1924 Mad 90), is not sound. Several decisions on the question now in issue before us were exhaustively reviewed by a Full Bench of this Court in Central Brokers v. Ramanarayana Poddar and Co. , Therein, Govinda Menon J. , as he then was, referred to the two tests laid down by their Lordships of the Supreme Court to find out whether the adjudication in a particular case is a judgment or not. They are (1)whether it terminates the suit or proceeding and (2) whether it affects the merits of the controversy between the parties in the suit itself. We respectfully adopt these two tests. Applying them to the present case, we find that neither test is satisfied. Here the order refusing to dispauper the plaintiff certainly did not terminate the suit. On the other hand it allowed the suit to continue. Nor did the order affect the merits of the controversy between the parties. Whether the plaintiff was a pauper or not was not one of the matters in dispute in the case. The order under appeal did not purport to be an adjudication on the rights of any of the parties. As the order in question docs not fulfil either of the tests, we must hold that it is not a judgment within the meaning of Clause 15 of the Letters Patent. It follows that this appeal under that clause is not sustainable and is therefore dismissed with costs.