TANGIRALA SOMASEKHARA RAO Vs. TANGIRALA LAKSHMINARASAMMA
HIGH COURT OF ANDHRA PRADESH
Tangirala Somasekhara Rao
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Subba Rao, J. -
(1.) THIS is an appeal against the Order of dismissal of O.S. No. 83 of 1952, a suit filed by the appellant in forma pauperis.
The Appellant filed O.P. No. 2 of 1952 on the file of the Subordinate Judge's Court, Tenali on 15th December 1951, for a declaration that he was the adopted son of one Subrahmanyam and for possession of the plaint schedule properties. The Subordinate Judge granted leave by his Order 17th July 1952, He adjourned the petition to 24th July 1952 for payment of batta. It was again adjourned for the same reason to 31st July 1952. The petitioner failed to pay batta even by that date.
On 31st July 1952, the learned Judge made the following Order:
Batta memo not filed. Register this petition, and then call on for the party to pay batta and notice.
On that day, the learned Subordinate Judge could have dismissed the application on the ground the batta was not paid. Instead, he showed indulgence to the appellant and gave him another opportunity by directing the petition to be registered and calling on him to pay batta subsequently. The order was made obviously either at the request of the appellant's advocate or, at any rate with his acquiescence.
Till that date, it is apparent that the appellant wanted to pursue the suit. But, subsequently, he changed his mind, and on August 1st, 1952 he filed a petition I.A. No. 921 of 1952 for return of the original petition to him. But unfortunately for him, in pursuance of the order dated 31st July 1952, the application was registered as a suit and summons were directed to be issued on the same date. The learned Subordinate Judge presumably because he expected that the application would have been registered by that time made an order in the following terms: "Return if it has not been numbered".
As the pauper application had already been registered, this order was of no help to the Appellant. As the suit was dismissed after it was registered, the Plaintiff was directed to pay the court -fee due to Government. The aforesaid appeal is against that order.
(2.) MR . Venkatararna Sastry, learned Counsel for the appellant, argued that the Subordinate Judge had no jurisdiction to register a pauper application as a suit unless batta for the issue of summons was paid. But none of the provisions of the Civil Procedure Code or the Rules of Practice cited before us state that the Court had no jurisdiction to make an order directing registration of a pauper petition as a suit without receiving batta. As no question of jurisdiction was involved, we find it very difficult to accept this appeal.
The appellant, for whose benefit the order was made and who either requested for such an order to be made in his favour or had taken benefit of it when made, cannot now question the correctness, of the order made. Indeed, it was an order in his favour and he cannot be allowed to turn round and say .that the Judge should not nave made it in his favour and presumably at his request. There are no merits in this appeal.
The appeal fails and is dismissed with costs.
(3.) THE Civil Revision Petition is also dismissed. No costs.;
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