BHUBANESWAR MISRA Vs. SAKUNTALA DEVI

JUDGEMENT

(1.) Petitioner No. 1 is defendant No. 1 in Original Suit No. 14 of 1973. Sakuntala Devi along with her minor sons and mother-in-law has filed the said suit for declaration of their title to the suit land, confirmation of their possession thereon and for declaration that the sale deed executed by defendant No. 4 (the husband of Sakuntala) in favour of the other defendants on 30-4-71 is invalid, illegal and inoperative. With the plaint an application under O. 33, Rules 1 and 2, C. P. C. to prosecute that suit in forma pauperis has been filed on the ground that the plaintiffs are unable to pay the court-fee as they have absolutely no source of income and have no properties in their possession from which they can pay the court-fees. In the plaint it is alleged that they have been rendered destitutes by defendant No. 4, who is a man of wayward habits and addicted to intoxication, and having come under the evil influences of defendants Nos. 1 to 3 has disposed of by sale the family properties in favour of the other defendants without any legal necessity or consideration. The application under Order 33, Rules 1 and 2 was dismissed by the trial court mostly on the grounds that defendant No. 4 had 2 batis of land more than 3 years back; he sold away About 1 to 10 acres of land out of his said property; and that he had a shop at Bhubaneswar. On the dismissal of the said application under O. 33, R. 2, C. P. C. filed by the plaintiffs, they preferred an appeal against that order before the court below. The lower court has allowed the said appeal holding that the findings and conclusion of the trial Court were arrived at on irrelevant, illegal and improper considerations. The court below on a consideration of the facts and circumstances of the case and the evidence on record has arrived at the finding that the petitioners are paupers and on that finding it has directed that the plaintiffs be allowed to prosecute the suit in forma pauperis. Defendants 1 to 3 have preferred this revision against the said appellate order.

(2.) It is urged by Mr. Misra, the learned counsel for the petitioners, that the court below had in law no jurisdiction to entertain or dispose of the appeal, and accordingly the impugned order passed by it is a nullity in law and has to be set aside. The plaintiffs' petition to allow them to prosecute the suit as paupers was filed on the ground that they did not have the financial capacity to pay the court-fee. Accordingly the order of the trial Court rejecting the said application was passed under R. 5 (b) of O. 33, C. P. C. O. 43, R. 1, C.P.C., which provides for appeals from orders, does not provide for any appeal against an order passed under R. 5 (b) of O. 33, C. P. C. This Court, by way of amending O. 43, Rule 1, C. P. C. in 1961, has added Cl. (nn) to the said Rule providing therein for an appeal from an order rejecting an application to sue as pauper on the ground specified in Cls. (d) and (g) of R. 5 of O. 33. So, in this State an appeal shall lie against an order rejecting an application to sue as a pauper on the ground that the allegations contained in the said application do not show a cause of action (Clause (d)), or that the suit is barred by any law (Clause (g)). The order of the trial Court rejecting the plaintiffs' application to sue in forma pauperis was not under Cl. (d) or Cl. (g) of R. 5 of O. 33, C.P. C., and the said order was one under Clause (b) of R. 5, against which no appeal is provided under the law. So the appeal in the court below was not maintainable and hence the court below had no jurisdiction to entertain the said appeal. So it could not have passed the impugned order.

(3.) Mr. Mohanty, the learned Advocate who has been appointed by this Court to represent and safeguard the interest of the minor plaintiffs, opposite parties 2 and 3 in this revision, while not disputing the above position, urges that the order passed by the trial court on the plaintiffs' aforesaid petition is palpably illegal and untenable, and, though the appellate court had no jurisdiction to pass the impugned order, it has done real and substantial justice in the matter by assessing legally and correctly the facts, circumstances and the evidence on record and has given a correct finding on merits, and therefore this Court should refuse to exercise its discretionary jurisdiction under S. 115, C. P. C. in this matter. In support of his above submission Mr. Mohanty has cited quite a number of decisions which support the view that if the revisional court finds that real and substantial justice has been done by the order of the appellate court, though the same was passed without jurisdiction, this Court may refuse to exercise its revisional jurisdiction in interfering with such an appellate order. This Court in the decision reported in 1965-31 Cut LT 443 (Narayan Nayak v. Sara Bewa) holds the above view. The same view has been taken in the cases reported in AIR 1931 Cal 425; AIR 1932 Mad 714; AIR 1946 Cal 63; AIR 1954 Mys 147 and AIR 1973 Him Pra 29.