SHANKER BAN Vs. RAM DEO

JUDGEMENT

(1.) In this case the applicant in revision has been refused leave to sue as a pauper and he applies to this Court to review that order in revision. In our opinion we have no power to do so. The refusal to sue as a pauper does not determine anything in the suit. It is merely the decision of a preliminary issue arising in or anterior to the suit. It determines nothing except that the plaintiff cannot sue as a pauper. He can sue in the ordinary way like anybody else, and to my mind the case is indistinguishable from the case of Buddhoo Lal V/s. Mewa Ram AIR 1921 All 1 in which a Full Bench of this Court finally endeavoured to set at rest a point upon which there had been considerable controversy. The question there was whether a preliminary issue on a question of jurisdiction was a case decided within the meaning of Section 115. That issue, if decided in the negative, determined the proceedings in that Court. But it is after all only a preliminary issue arising in a suit. Although the plaintiff cannot, after the determination of that issue, sue in that Court, he can still sue in the proper Court which has jurisdiction. If the decision of an issue that the Court has no jurisdiction is not a case decided, I am unable for my part to see how it is possible to hold that the decision of a preliminary issue that the plaintiff is, or is not a pauper, is a case decided.

(2.) The only authority of any weight, in which this matter is reported, is the case of Secretary of State V/s. Jillo (1898) 21 All 138 decided by three Judges, the then Acting Chief Justice, Banerji, J., and Burkitt, J. Nothing is said in the head note about revision, but the Court held that no appeal lay from an order rejecting an application for leave to sue in forma pauperis, and they dismissed the appeal. They then entertained the matter of their own motion in revision saying: The order passed by the Subordinate Judge, is so extraordinary that we direct this case to be treated as a cane in revision: and they appointed a further date for argument, after allowing the other party to be heard, and they quashed the order in revision. The report and the head-note are alike somewhat difficult to follow, probably due to the confusion arising from the procedure of the Subordinate Judge. What does appear to be clear is that, although the pauper's application was rejected, the Secretary of State, who had resisted it, was refused his costs. In revision the High Court passed an order directing the application to sue in forma pauperis to be dismissed with costs giving the Secretary of State his costs against the applicant. The point about a "case" was not argued; it was assumed to be a case.

(3.) On the other hand, in the case of Muhammad Ayub V/s. Muhammad Mahmud (1910) 32 All 628, a Divisional Bench held that revision did not lie from an order granting leave to sue as a pauper. The subtle distinction relied upon is clearly set out in the judgment of the two Judges. Mr. Justice Charmer, in particular, says: It seems to be quite clear that the case must have been decided before the High Court can interfere in revision. But giving the word "case" the widest, meaning, I am unable to bold that the order against which this application for revision is presented decided any "case". It appears to me that there is a clear distinction between the case of an application for permission to sue or appeal in forma pauperis being dismissed or rejected, and the case in which a similar application is allowed. In the former it may be said that the case had been decided, while in the latter the order appears to be merely interlocutory.