W C KENNEY Vs. NANDAN PRASAD

JUDGEMENT

(1.) THE sole plea argued before us was that the learned Judge had no jurisdiction either to retransfer the trial of this case to the Subordinate Judge, or to hear the appeal from the decree of the Subordinate Judge. It appears that one Kenney, who is respondent before us, presented an application to sue in forma pawperis in the Court of the Subordinate Judge of Cawnpore. THE District Judge of Cawnpore, acting under Section 25 of the Civil P. C., withdrew this application and decided it himself. After deciding it, he retransferred the suit for trial to the Court of the Subordinate Judge. It is this order of transfer, and all that followed it, which is impugned by the appellant. In support of this contention the learned advocate for the appellant drew our attention to the case of Amir Begam v. Prahlad Das Weekly Notes 1902 p. 66. That case is undoubtedly an authority. THE only way in which the Learned Counsel for the respondent tried to distinguish it is, that when the application for permission to sue as a pauper was decided, the suit, which then came into existence, returned automatically--to use his own expression--to the Court which had jurisdiction to hear and determine it, i.e. the Court of the Subordinate Judge of Cawnpore. We see no authority for holding that there is any breach of continuity between the application to sue in forma pauperis and the suit into which that application matures. According to Section 410 of the Civil P. C., the application, as soon as it is granted, is deemed the plaint in the suit, and it has more than once been ruled by this Court that in such a case the plaint really dates back to the date of the application, not to the day when the application is granted and registered.

(2.) THIS appeal must, therefore, succeed, and we decree this appeal and set aside all proceedings which have taken place after the date on which the District Judge granted the application to sue in forma pauperis. All these proceedings were without jurisdiction. The case must go back to the learned Judge, with directions to take it up from that point and to determine it according to law. The appellant will get the costs of this appeal.