PARVATHI AMMAL Vs. KGVENKATESWARA AIYAR

JUDGEMENT

(1.) THIS is an appeal against an order of Krishnan, J., rejecting an application for leave to rile a memorandum of objections in forma pauperis. It is argued that no appeal lies against such an order. There are, no doubt, some decisions to that effect, e.g. Appasami v Soma-sun dara (1902) ILR 26 Mad 437 and Banna Bibi v. Mehdi Hussain (1889) ILR 11 All 375 But the former has since been expressly dissented from in Tuljaram V/s. Alaqappa (1910) ILR 35 M 1: 21 MLJ 1 (FB) and the latter proceeded on a ratio decidendi which is no longer maintainable. The pronouncement of Sir John Edge in Sevak Jeranchod Bhogilal V/s. The Dakore Temple Committee (1925) 49 MLJ 25 (PC) is also relied on. Speaking for myself, I should welcome any clear cut definition which would render unnecessary, the discussion which is at present almost inevitable whether a particular order does or does not pass the test laid down in Tuljaram V/s. Alagappa (1910) ILR 35 M 1: 21 MLJ 1 (FB) That test is never particularly easy of application and would be extremely difficult to apply in a case like this. 1, however, see no reason to consider the very large question raised by that pronouncement. Assuming that there is a right of appeal against an order like this, I think that we should not interfere. The question is one of the excercise of discretion. That is of course, not the test of non-appealability, but "when the determination complained of is merely the result of the exercise of discretion on the part of the Judge in a matter which was a proper subject for the exercise of that discretion, the appellate Court would rightly decline to interfere." Desouza V/s. Coles (1868) 3 MHCR 384 Here, the Judge had discretion to admit the application, but he thought fit not to exercise it in the appellant's favour. I think that we should decline to interfere with his order. The appeal is dismissed without costs. One month for paying the necessary fees. Devadoss, J.

(2.) I agree.