Judgement
Harnam Singh, J. :- This is an appln. for leave to appeal to the S. C. of India from the decision in Civ. Misc. No. 62 of 1949 whereby this Ct. refused leave to the pltf.-appct. to appeal in forma pauperis.
2. Mr. D. K. Mahajan for the respondents urges a preliminary objection that an order rejecting an appln. to appeal in forma pauperis does not come within Art. 133, Const. Ind. The argument raised is that such an order is not a judgment, decree or final order of the H. C. within Art. 133. Clearly, the appeal sought to be preferred to the S. C. of India is not an appeal from any decree of this Ct.
3. The question that then arises for decision is whether the order passed in Civ. Misc. No. 62 of 1949 on 16-3-1950 is a judgment or final order or not. Plainly it is not.
4. Now, the word "judgment" is not defined in the Const Ind. or in the General Clauses Act, 1897 In Whartons Law Lexicon the word "judgment" is defined as a judicial determination putting an end to the action by an award or redress to one party, or discharge of the other, as the case may be. Indeed, there is abundant authority for the view that "judgment" means a decision of the Ct. which affects the merits of the question between the parties by determining some right or liability and does not include a mere formal order or an order regulating the procedure in a suit or an appeal. The order from which it is sought to appeal to the S. C. of India does in no way determine the rights of Jagat Ram as an applt with regard to the subject-matter of appeal. The order is merely an interlocutory order prescribing the procedure under which the pltf.s appeal should be conducted. It was open to the applt. to pay the court fee if he was able and willing to pay the court-fee and to proceed with the appeal in the ordinary course. Clearly, the order sought to be appealed against is not a judgment within Art. 133, Const. Ind.
5. The question that then arises for determination is whether the order from which it is sought to appeal to the S. C. of Ind. is a "final order" within Art. 133, Const. Ind.
6. On this point the case is concluded against the appct. by authority. Ram Prasad Sha v. Mt. Fulpati Kuer, 6 Pat. 67 : (A. I. R. (14) 1927 Pat 175), B. R. Vertannes v. R. G. B. Lawson, 157 I. C. 39 (Rang.), Murlidhar v. Faqir Bakhsh, A. I. R. (12) 1925 Oudh 549 : (85 I. C. 811) and Aisha Bee Bee v. Noor Mohammad, 10 Rang. 504 : (A. I. R. (19) 1932 Rang 192) may been seen.
7. A similar point came up before the Judicial Committee of the P. C. in Ramchand Manjimal v. Goverdhandas Vishandas Ratanchand, 47 I. A. 124 : (A. I. R. (7) 1920 P. C. 86). In that case Lord Cave said :
"The question as to what is a final order was considered by the Ct. of Appeal in the cases of Salaman v. Warner, (1891) 1 Q. B. 734 : (60 L. J. Q. B. 624),
Bozson v. Altricham Urban District, Council, (
1903) 1 K. B. 547 : (
72 L. J. K. B. 271) and Isaacs v. Salbstein, (
1916) 2 K. B. 139 : (
85 L. J. K. B. 1433). The effect of those and other judgments is that an order is final if it finally disposes of the rights of the parties."
Mr. Mehar Chand Sud, learned counsel for the appct., however urges that the order from which it is sought to appeal to the S. C. of India does determine the right of Jagat Ram to appeal in forma pauperis. This point was considered in Ram Prasad v. Mt. Fulpati, 6 Pat. 67 : (A. I. R. (14) 1927 Pat. 175). In that case Dawson Miller C. J. (Foster J., concurring said) said :
"The only argument addressed to us is that the decision does determine the right of the party to appeal in forma pauperis and therefore it is a final adjudication of that right. That however is not the class of right with regard to which finality must exist in order to make it a final decree or order. Every order in one sense finally determines some right of the parties, whether it be a right to appeal or whether it be a right to have an extension of time or whether it be any other kind of right, but before one can give final decree or order there must be some final adjudication upon the subject-matter of the suit, that is to say, the rights claimed by one party in the suit itself and denied by the other."
8. That being the situation of matters, the order passed by this Ct. in civ. Misc. No. 62 of 1949 on the 16-3-1950 is not a "judgment" or a "final order" within Art. 133, Const. Ind.
9. Apart from the objection that the order in question is not a judgment, decree or final order within Art. 133, Const. Ind. I have no doubt that the Ct. acted strictly in accordance with the provisions of O. 44, R. 1, C. P. C. and merely did what it was bound by the proviso to that rule to do. The Proviso to R. 1 of O. 44 required the Ct. to reject the appln. unless, upon a perusal thereof and of the judgment and decree appealed from, it sees reasons to think that the decree is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust.
10.In rejecting the appln. for leave to appeal in forma pauperis this Ct. found that inasmuch as the decision of the trial Ct. proceeded upon questions of fact, namely, that the money in suit was not the property of Mt. Beli and that she was not competent to make the will with respect to the money in dispute, the case did not satisfy the requirements of R. 1 of O. 44 of the Code. No substantial question of law arises in the appeal, nor is the case a fit case for appeal to the S. C.
11.Finding as I do that the order passed by this Ct. on 16-3-1950 is not a judgment, decree or final Order within Art. 133, Const. Ind. and that the Order rejecting the appln. to appeal in forma pauperis was made in accordance with the requirements of the proviso to R. 1 of O. 44, I would reject the appln. for leave to appeal to the S. C. of India.
12. Considering, however, that the appct. sued in forma pauperis and his contention all along has been that he has no means to pay the court-fee we leave the parties to bear their own costs in these proceedings.
13. Kapur, J. :- I am of the same opinion and would like to add that the use of the word judgment in Art. 133 (1) (a) must mean something different from the words decree and final order." In the C. P. C. in S. 2 (9) a judgment "means the statement given by the Judge of the grounds of the decree or order." If such a wide meaning were to be given to the word judgment then the words decree or final order would be unnecessary. It was observed by Harries C. J., in Rajkumar Chandra v. Midanapore Zemindary Co. Ltd., 54 C. W. N. 874 at p. 877 :
"If appeals lay from all judgments then the words decree or final decree were unnecessary and it appears to me that if this Ct. holds that the order sought to be appealed from is not a final order, then no appeal can lie because there was a judgment upon which the order sought to be appealed from was drawn up."
In my opinion, if too wide a meaning were to be given to the word judgment there would be right of appeal from an order which is not final and from a formal adjudication which could not be described as a decree which would mean nullifying the two words decree or final order. The meaning of this word has been defined in several cases to mean a decision which affects the merits of the question between the parties by determining some right or liability. See Ibrahim v. Fuckhrunissa Begum, 4 Cal. 534 at p. 534 : (3 C. L. R. 311) ; The Justices of the Peace for the Town of Calcutta v. Oriental Gas Co. Ltd., 17 W. R. 364 : (8 Beng L. R. 433) Ruldu Singh v. Sanwal Singh, 3 Lah. 188 : (a.I.R. (9) 1922 Lah. 380) and Tuljaram Row v. Alagappa Chettiar, 35 Mad. 1 : (8 I. C. 340).
14. In the last case (35 Mad. 1) it was held that
"an adjudication on an appln. which is nothing more than a step towards obtaining a final adjudication in the suit is not ............ a judgment."
I respectfully agree with the view taken by Harries C. J., in the case referred to above and am of the opinion that the wide meaning which the petr. seeks to give this word is not justified.
15. I, therefore, agree that this petn. should be dismissed but without costs.
Petition dismissed.