Ramalingam and others vs Sreeselam

Indar Ramalingam, Indar Sivamallayya and Indar Laxmayya filed a suit for partition of joint family property against their father and their cousin brother. The plaint allegation was that Indar Ramalingam was the adopted son and plaintiffs Nos. 2 and 3 were the natural sons of Indar Venkiah. Defendant No. 2 and plaintiffs were members of a joint family. Indar Venkiah their father executed a release deed in favour of Indar Sreeselam, their cousin brother, in respect of one item of the joint family property relinquishing his interest therein which they said he was not competent to execute as it affected the right and interest of the plaintiffs. They prayed for a decree for the cancellation of the release. The contesting defendants resisted the suit on various grounds. The Sessions Judge, Secunderabad, while decreeing the suit of the plaintiffs to the extent of half the share in house No. 8048, Ghas Mandi, Secunderabad, refused to grant the relief in respect of the cancellation of the release deed executed by defendant No. 2. The plaintiffs have appealed against this decree.

Although the plaintiffs paid the court-fee on their claim in the original Court, they have filed this appeal in ''forma pauperis''. When this petition came on for hearing before this Court, a bench of this Court sent the case to the lower Court for enquiry with regard to the pauperism of the petitioners-appellants. After the case went to the trial Court, evidence was led by both the parties and the case came back after enquiry with the report of the Sessions Judge holding that the plaintiffs were paupers. On 17th October 1950, Mr. Ramaswamy Aiyengar, Advocate, appearing for the respondents represented to the Court that he would argue about the question of the maintainability of the appeal and also about the pauperism of the appellants. The case was posted for arguments before us today. We heard the arguments of the respective advocates.

The learned advocate for the appellants argues that there is sufficient evidence on record to prove that the appellants are not possessed of sufficient means to pay the court-fee and further that the decree of the lower Court is against law; so the petition for leave to appeal in ''forma pauperis'' should be granted. The learned advocate for the respondent very strongly opposed this petition on the following grounds: His first contention was that S. 609 of the Civil P. C. contemplates ''that the appellant should ''prima facie'' show that the decree appealed from is against law or against some usage having the force of law or that it is otherwise erroneous or unjust'', which has not been shown in this case. In this connection, it was further argued that the Court in order to come to the conclusion whether the judgment is contrary to law or is erroneous or unjust has merely to confine itself to a perusal of the judgment and not go beyond that. The second contention is that the respondents can question the fact of pauperism. The third contention is that from the testimony of the plaintiffs'' next friend it is apparent that she has entered into an agreement with the advocate with reference to the subject-matter of the suit. That is to say, a third person has acquired an interest in the subject-matter of the suit. This fact alone is sufficient to reject the petition of the plaintiffs, having regard to the provisions of S. 478(e) of the Hyderabad Civil P. C.

In so far as the first argument is concerned that it should be shown that the decree appealed from is against law or is contrary to any usage having the force of law, we would like to point out that an application under S. 609 is a judicial proceeding and the order made thereon should be based upon the exercise of a judicial discretion on a proper consideration of the relevant material. It is a fundamental principle in all judicial procedure that no order should be made without notice to the parties who will be prejudicially affected by the order and without affording them a reasonable opportunity of being heard. Thus we are of the opinion that under S. 609 of the Hyderabad Civil P. C. reasonable opportunity of being heard must be given to the parties who will be affected by the order. The mere absence of an express provision for hearing the applicant is, in our opinion, no justification for refusing to hear him. Hearing the parties affected before passing adverse order is such a well established and cardinal principle governing the procedure of Courts that the code must be taken to assume its observance in all cases as a matter of course without any express provision in that behalf.

The learned advocate relying upon a judgment of the Bombay High Court in the case of ''Sakhu Bai v. Ganpat,'' 28 Bom 451, argued that such a thing is not contemplated as the right to appeal in ''forma pauperis'' was a very much restricted right and the Court would reject the application if it is not satisfied on a mere perusal of the judgment that the same is not against law. 28 Bom 451, relied upon by the learned advocate for the respondent was a case under S. 592 of the Civil P. C. of 1882 wherein Sir L. H. Jenkins observed that that section made it imperative on the Court to reject the application unless upon the perusal of the judgment and decree it has reason to think that the decree appealed from is contrary to law or is otherwise erroneous. As was observed by Patanjali Shastri J., ''the point under consideration did not arise in the ''BOMBAY CASE'' 28 Bom 451, when the learned Judge was merely pointing out the desirability of the Court recording briefly the reasons for granting leave and it is by no means clear that the word "only" occurring in the passage quoted was meant to exclude a hearing of the petitioner and not material other than the application, the judgment and the decree.''

We are afraid it would amount to putting too strict a construction on the provisions of S. 609 (O. XLIV R. 1 of the Civil P. C). We are of opinion that the requirements of S. 609 would be deemed to have been complied with only where the appellate Court gives an opportunity to the petitioner to satisfy the Court how the judgment of the lower Court is against law and not otherwise. We are supported in our view by the judgment of the Madras High Court in Velayudham Subbaya Nadar Vs. Kalamsetti Anjaneyalu and Others, wherein Patanjali Sastri J. (now a Judge of the Supreme Court) observed:

Hearing parties affected before passing adverse orders is such a well established and cardinal rule governing the procedure of Court that the Code must be taken to assume its observance in all cases... without any express provision in that behalf.

Thus this contention fails. As regards the second contention, it is stressed on behalf of the appellants that when this Court had directed enquiry to be made with regard to pauperism the appeal must be deemed to have been admitted and the order cannot be questioned at a later stage. From the record we find that a Bench of this Court directed enquiry to be made with regard to the pauperism of the petitioners after notice to the other party. There is support for the view that where once an order for the enquiry into the pauperism of the appellants is directed to be made by the appellate Court, the Court must be presumed to have admitted the petition and saw good reason to think that the decree was contrary to law. This view of ours is supported by the ruling of the Patna High Court in Mt. Bibi Sogra Vs. Radha Kishun, which followed an earlier ruling of the same High Court reported in Raghunath Prasad Sahu Vs. Mt. Rampiari Kuer, Therefore, we are not prepared to agree with the learned advocate for the respondent that it would be open to the Court now to go into the question as to whether the decree appealed from was against law or was erroneous:

After this, we have to consider the question whether from the evidence on record it could be concluded that an interest had been created in a third party in the subject-matter of the suit by reason of the agreement entered into by the appellants'' next friend. In this connection, the learned advocate relies upon that portion of the statement of the appellants'' next friend, Laxamma which is to the following effect:

I have told the lawyer that I will pay the fees after the result of the case when I receive some money. I have not paid now nor am I in a position to pay in future. I have agreed to pay from the share my sons would get if the appeal succeeds.

These words according to us only indicate that the next mend of the appellants-petitioners promised to pay the lawyer his fees after the successful termination of the suit as he was not in a position to pay the same at that stage. Hence it could not be said from this that an interest in the third person is created in the suit property nor could it be interpreted that the lawyer was to recover his fee from out of the fruits of the decree. If. from the statement of the next friend, we could come to that conclusion, then surely it would have come within the clutches of S. 478 corresponding to O. XXXIII R. 5 (e) of the Indian Civil P. C. A mere agreement undertaking to pay the fees to the lawyer on the successful termination of the case would not amount to an interest having been created in the lawyer in the subject-matter of the suit within the meaning of S. 478 of the Civil P. C. We, therefore, overrule this contention of the learned advocate for the respondent.

As regards the question whether the appellants are paupers, we are of the opinion that the evidence adduced on behalf of the appellants is sufficient to prove, that they are at present not possessed of sufficient means to pay the court-fees. There does not appear to be any ''mala fides'' on the part of the appellants as it appears from the record that they had paid the court-fees in the lower Court and if they were possessed of sufficient funds they would have paid the requisite court-fees and not applied for leave to appeal in ''forma pauperis.'' The lower Court has believed the evidence of the appellants and we do not see any reason to interfere with this finding of the lower Court and we therefore agree with the finding of the lower Court. The appellants are therefore allowed to sue in ''forma pauperis''. Case be posted for further proceedings.