RAMAKRISHNA NADAR Vs. PONNAYYA THIRUMALAI VANDAYA THEVAR

JUDGEMENT

(1.) We do not think it necessary for the purpose of disposing of this appeal to express any definite opinion on the proper construction of Order 33, Rule 15, but we may note that, the view taken by the Allahabad High Court in Mahadeo Sahai V/s. Secretary of State for India in Council has recently been affirmed by a Full Bench of that Court in Shiam Sunder V/s. Mt. Savitri Kunwar (F.B.). The costs directed to be paid to the respondent in O.P. No. 8 of 1931 have been paid on the 2nd March, 1932 and assuming, as contended for by the defendants, that this won t satisfy the terms of Order 33, Rule 15, because of the use of the word "first" in that rule, we do not think the Court below need have dismissed the suit altogether. It is unnecessary to go through the formality of a dismissal and a re-institution the next moment after payment of the costs ordered in O.P. No. 8 of 1931. We think it will be sufficient to say that the suit must be treated as one instituted on the 2nd of March, 1932, and dealt with on that basis.

(2.) On behalf of the respondents here it was argued that the appellate Court has no power to make any such order because there was no suit regularly instituted in the Court below and therefore no appeal legally before us in which we can make any such order; and reliance was placed on the Full Bench decision of the Allahabad High Court above referred to for that purpose and on a judgment of the Privy Council which is also referred to in that case. We do not agree with this contention. The Allahabad Full Bench only held that payment of the costs of the pauper petition during the pendency of the subsequent suit would not amount to a substantial compliance with the terms of Order 33, Rule 15, that is, it would not make the institution of the suit valid as from the date of the institution. It has nothing to do with the course that we now propose to adopt. Nor has the Privy Council decision any bearing upon this point. In that case a right of appeal was given only on leave granted by the Court of first instance or by the appellate Court and the grant of leave was made by the law itself subject to certain conditions being complied with. All that their Lordships held was that where these conditions had not been complied with and no leave had been granted, there was no case before the Court of appeal to deal with. Whether the ground sought to be urged in the appeal in the present case is well-founded or not, it does not seem to us right to hold that the appeal itself is not competent and that there is no appeal that the Court can legally deal with.

(3.) We accordingly set aside the decree of dismissal and send the case back to the lower Court with directions to restore it to file and deal with the suit on the merits on the footing that the suit was instituted on the 2nd of March, 1932. We have been informed that as a precaution the plaintiffs have in fact filed another suit in the lower Court. To avoid any complications or conflicts, we direct that arrangement may be made for both the suit being heard together. There will be no order as to costs in this appeal.