B SUBBARAO Vs. YELLALA MARAM SATYANARAYANA

JUDGEMENT

(1.) This revision is directed against the order of the District Munsif of Kurnool, dismissing the petitioners application for review of his order dated 4-4-1958. The 1st petitioner is the father and the second petitioner is the daughter who filed a suit in forma pauperis for the recovery of damages for the loss sustained on the allegation that the second petitioners mother was knocked down by a lorry belonging to the defendant and was killed. The petitioners filed the present suit for recovery of damages from the defendant This suit was filed in forma pauperis. This petition to sue in forma pauperis was opposed by the respondent firstly on the ground that the petitioners had no locus standi, he disputed the fact alleged in the plaint, that the 1st petitioner was the husband of the deceased and that the 2nd petitioner was born to the 1st petitioner and the deceased. The fact that the 1st petitioner was not in a position to pay the court-fee was also disputed. The petitioners examined in support of their pauperism petitioner No. 1 as P. W. 1. On behalf of the respondent, three witnesses were examined viz., R.W. 1 Karnam, R. W. 2 Respondent himself and R. W. 3 who is said to be a relation of the deceased Santhamma. On this oral evidence the court came to the conclusion that the 1st Petitioner had not let in any independent evidence to show that he married Santhamma. There was no record produced evidencing the fact that Santhamma was the wife of the 1st petitioner. He animadverted on the fact that the birth extract of the second petitioner who is said to have been born five years ago at Kurnool was not produced. He therefore believed the evidence produced by the respondent and came to the conclusion that it had not been established that Santhamma was the married wife of the 1st petitioner. As regards the question as to whether the petitioners were possessed of sufficient means to pay the court-fee, the court came to the conclusion that the properties of Santhamma were in possession of others and not with the petitioners at the time of the suit In effect this finding wag in favour of the petitioners. The court further held that the respondent was not able to prove that the petitioners had means to pay the court-fee. While holding so, the court came W the conclusion that the petitioners had no locus standi to file the suit in forma pauperis, that the allegations in the plaint did not disclose any cause of action and in the result, it dismissed the petition to sue in forma pauperis. The petitioners thereafter filed an application under Order 47, Rule 1, read with Section 151 C. P. C. praying that the order passed by the court on 4-4-1958 rejecting their application to sue in forma pauperis be reviewed. Along with this petition the 1st petitioner filed a true copy of the Marriage Registration certificate granted by the Registrar of Marriages and in so doing he stated that he could not file that document earlier in spite of his best efforts as he was able to receive the certified copy only on 7-6-1958 and that that was an important piece of evidence showing the relationship of the petitioners with the deceased Santhamma. Therefore, it was on the basis of the fresh documentary evidence that was available, the petitioners sought a review of the Previous order. This application, was opposed on the ground that the relationship of Santhamma with the 1st petitioner was denied even at the stage of the reply notice sent by the respondent and had stated in his counter to the application to sue in forma pauperis that Santhamma was not the wife of the 1st petitioner. Under the circumstances therefore the 1st Petitioner had knowledge of the fact of respondent denying the relationship between the deceased and the 1st petitioner and as such he should have produced the evidence at the earlier stage and inasmuch as he failed to do so, it was not open to him to produce the same at a later stage and seek a review of the order.

(2.) The lower court considered the petition and the objections on the other side and finally rejected the application holding that it was within the knowledge of the 1st petitioner even at the stage of evidence of pauperism and that being the best evidence he did not produce the same at the earlier stage and that therefore there was no exercise of due diligence on his part in getting the necessary documents and held that he could not be allowed to produce the same and the production of this evidence could not be a ground for admitting a review under Order 47, Rule, 1 C. P. C, It is this order that is challenged in this revision.

(3.) A preliminary objection is raised on behalf of the respondent stating that no revision would lie against an order refusing to review inasmuch as it would amount to the exercise of discretion by the lower court and where such a discretion had been exercised, it is not open under Section 115 C. P. C. to interfere with such an order. For this purpose, reliance is placed upon a decision of the Madras High Court in the case of Viswanatham v. Sreenivasa Venkata Varadacharyulu, AIR 1943 Mad 377(1). In this case the review was sought of a previous judgment of the court on the ground that in a subsequent suit a similar property was held to be an estate. The Judge refused to allow the review holding that there was no error apparent on the face of the record. Against that order a revision was filed in the High Court. Mocket J. following the decisions of the Allahabad and Bombay High Courts held that Section 115 C. P. C. could not be invoked against an order of a court refusing to grant a review of its decision. In holding so, the learned Judge observed that the lower court had complete jurisdiction to decide as to whether review should be allowed or not and under those circumstances the jurisdiction of the High Court under Section 115 Civil P. C. could not be invoked. No doubt in that case the learned Judge also observed that there were no merits in the petition. The other decision on which reliance has been placed is the judgment of Curgenven, J. in Mahomed Sultan v. Nagoji Rao, AIR 1931 Mad 828. In this case what the learned Judge observed was that in case where the court was of the opinion that the lower court had acted without jurisdiction, the remedy of the aggrieved party was to appeal against the order and it would be in very rare and unusual cases that such an order could be interfered with in a review or revision. That is to say, where the petitioner fails to adopt the remedy provided under the law, the court would not interfere either in a review or revision. In this case, the learned Judge merely left the matter there.