KAILASH NATH Vs. NAGAR MAHAPALIKA LUCKNOW

JUDGEMENT

(1.) This is an appeal from an order of our brother S.D. Singh refusing the appellant permission to appeal as a pauper on the ground that the judgment under appeal was not contrary to law or some usage having force of law or otherwise erroneous or unjust. The preliminary question that arises is whether the order is a judgment within the meaning of Chapter VIII, Rule 5 of Rules of Court. This special appeal is filed only under that provision ant. would be maintainable only if it is from a judgment and not a mere order. Under Order XLIV, Rule 1, when an application for leave to appeal as a pauper is made the Court is required to reject it unless upon a perusal there of and of the judgment and decree appealed from it saw reason to think that the decree was contrary to law of to some usage having the force of law or was otherwise erroneous or unjust. Whatever our learned brother did by the impugned order was to carry out that provision; he rejected that application as he was required to do, when he found that the decree appealed from was not contrary to law or to some usage having the force of law or was not otherwise erroneous or unjust. After rejecting the application he gave time to the appellant to make good the deficiency in the Court-fee and we learn that he failed to make good the deficiency in the Court-fee within the time allowed and the memorandum of appeal has been rejected. The order of our learned brother rejecting the application in compliance with the law cannot be said to be a judgment; without deciding any question of right or title he rejected the application in order to comply with the law. The only judgment that could be said to have been exercised in the matter was to find that the decree under appeal was not against law or erroneous or unjust. This finding that it was not against law or erroneous or unjust did not amount to determination of any question of right or title between the parties. He only considered the questions of law that arose in the case and decided that the answers given to them by the lower Court were not incorrect. As the questions of law were not incorrectly decided by the lower Court he held that the decree under appeal was not against law. Even when he held that it was not unjust or otherwise erroneous he did so without considering the question of right or title of the parties. He only considered the law and that too only for a limited purpose. Since he left it open to the appellant to make good the deficiency in the Court-fee it means that he did not decide any question finally between the parties when he refused the appellant permission to appeal as a pauper. By his order he simply asked him to pay the required fee on the memorandum of appeal; requiring the appellant to pay the Court fee prescribed by law on a memorandum of appeal cannot amount to passing a Judgment. When he left the controversy between the appellant and the respondents open to be decided later he could not be said to have delivered a Judgment. It was undoubtedly an interlocutory decision but while an interlocutory decision can be an interlocutory judgment this decision was not an Interlocutory judgment at all because he left the appeal pending.

(2.) In Ramzan All v. Mst. Satul Bibi, AIR 1348 All 244 a Full Bench of this Court held that an order granting an application for leave to sue in forma pauperis is a case decided within the meaning of Section 115; but it does not follow that it is a judgment. Every order by which a case is decided is not a judgment and a judgment is not that by which a case is decided.

(3.) We, therefore, hold that this appeal is not permitted by Chapter VIII, Rule 5 of Rules of Court and dismiss it summarily.