TANIGONDALA ROSI REDDY Vs. SYAMALA LAXMAIAH

JUDGEMENT

(1.) The question involved in this Miscellaneous Appeal referred to a Division Bench by our learned brother, Ramachandra Rao , J., relates to the construction to be put upon Cl. (nn) of Order 43, Rule 1 of the C.P.C. The learned Judge doubted whether an appeal will lie to this Court when an application filed under Order 33, Rules 1 and 2 is rejected under Cl. (b) of Rule 5 of Order 33 holding that the applicant is not a pauper. We are not here concerned with the correctness or otherwise of the finding recorded by the Court of first instance on the question whether the applicant is not a pauper. We are only concerned with the question whether an appeal will lie under Cl. (nn) of Order 43 (1) when an application is rejected on grounds other than the grounds specified in Cls. (d) or (d-1) of Rule 5 of Order 43. Order 43, Rule 1 (nn) reads :

(2.) In the view taken by us we are supported by what Vaidialingam, J., (as he then was of the Kerala High Court) said in Avirah Ouseph v. Ammukutty Amma, AIR 1965 Ker 179 at p. 181 that "the more reasonable interpretation to be placed on clause (nn) of Rule 1 of Order 43 of the Code of Civil Procedure , is that in order to enable a plaintiff whose application to sue as a pauper, has been rejected , whether the rejection is at the preliminary stage under Rule 5 , or after the issue of notice under Rule 6, and following the procedure under Rule 7, and then finally rejecting the application under Rule 7 (3), the rejection must have been either on the ground that the plaintiffs allegation do not show a cause of action as provided in clause (d), or on the ground that the suit appears to be barred by any law, as provided in clause (d-1) of Rule 5. If the rejection of the plaintiffs application for leave to institute a suit as a appears, is on any other grounds not covered by clause (d) or clause (d-1) of Rule 5, whether the rejection is at the preliminary stage dealt with by Rule 5, or after hearing the parties under Rule 7, the plaintiff is not entitled to file an appeal as against such an order of rejection." The case of Govinda Pathiyar v. Ananthanarayana, AIR 1965 Mad 441 at p. 442 relates to the scope and interpretation of Rule 15, Order 33. But there is however an observation of Govinda Menon, J., who spoke for the Bench :

(3.) The lower Court has dismissed the petition of the petitioner herein to declare him as pauper on the ground that the petitioner has not established dispossession from the 2/3 rd portion of the suit property. The lower Court came to this conclusion on the basis that the petitioner has used the words driven out of the house and not dispossessed. I fail to appreciate how the lower Court could distinguish between the factum of dispossession and being driven out of the house. A person who has been driven out of the house obviously would be considered to have been dispossessed of the house. That is what the plaintiff meant by stating that he was driven out of the house. That apart, the plaintiff has filed a suit for possession of the entire property. He would never have filed the suit for possession of the entire property when he was in possession of 2/3 rd portion of the property.