M. Wahajuddin, J. - (1.) SRI R. N. Singh appeared for the appellants and SRI Sankatha Rai appeared for the respondent.
(2.) THIS first appeal from order is directed against the order dated 31-10-1977 of the Additional District Judge, Varanasi, allowing the review application of the respondent, setting aside the order dated 3-9-76, passed in the appeal holding that the present respondent's appeal is not maintainable, and fixing 16-12-77 for disposal of that appeal No. 47 of 1973 afresh. It would appear that the present appellant moved an application for permission to sue in forma pauperis. That application was dismissed on 10-3-65 in default. Another application was moved for its restoration and it was also dismissed, but on a further application the earlier application for restoration was restored and it was again dismissed on 28-10-67 in absence of the respondent applicant. To cut-short, on final dismissal of the restoration application on 15-11-67 an appeal was filed, namely, appeal No. 47 of 73. This appeal was finally dismissed on 3-9-1976, holding that the appeal itself was not maintainable, as there was no suit till then. The respondent then preferred a review application which was allowed, as aforesaid. The first point urged is that this very first appeal from order is not maintainable. I am unable to agree with such submission. Amendment was made in Order 47 Rule 7 CPC, and such amendment came into force on 1-2-1977. As per this amendment Rule 7 (1) was substituted laying down that an appeal will lie from the order granting the application. This law was enforced when the review application was allowed and when the present appeal was preferred, and, consequently, this appeal is maintainable. Otherwise also if the very review application did not lie for want of jurisdiction to entertain any review, the appeal will be entertained by the superior court.
(3.) THE next point arising for consideration is whether any appeal lay from an order declining to restore the forma pauperis application, which was rejected in default. It is being urged that Section 26 provides that the suit may be instituted by filing a complaint or in any other manner provided under the law and under Section 149 CPC, there is a provision for allowing time for making good the deficiency in court-fee and unless any order was finally passed therein, it will be wrong to say that in forma pauperis proceedings was not a suit. I am unable to agree with this submission. I am simply to consider whether an appeal will lie from an order rejecting the application for. permission to sue in forma pauperis in default and rejecting the restoration application. In this connection I may quote the relevant provisions contained in Order 43 Rule 1 (c), CPC :- " Order XLIII : 1. Appeals From Order :- An appeal shall lie from the following orders under the provisions of Sections 104, namely : - (a) ............ (b)............ (c) an order under Rule 9 of Order IX rejecting an application (in a case open to appeal) for order to set aside the dismissal of a suit. " A plain reading of this provision would clearly indicate that what is contemplated and provided is that an appeal would lie against order under Rule 9 Order IX rejecting an application for an order to set aside the dismissal of a suit. It is provided that such appeal lies in a case open to appeal. So the crux of the matter is whether rejection of an application for permission to sue in forma pauperis in default amounts to dismissal of the suit. It is not the case. Even according to the submissions of the learned Counsel for the respondent the person applying to sue in forma pauperis has the option to then pay court-fees and proceed as a suit. Reliance was placed upon the case of Vijay Pratap v. Dukh Haran Nath, AIR 1962 SC 941 observations on page 945 in paragraph 13. THE observations that the suit commences from the moment application for permission to sue in forma paupreis is presented has been made in a different context and cannot be deviated from the same. What has been held in that case is that actually as application under Order 33 CPC is in the nature of commencing a suit the provisions of Order 1 Rule 10 CPC may apply. Nothing beyond that has been held. In fact, obviously, application under Order 33 a step towards the suit and, if allowed, the proceeding will convert into suit. But that would not mean that if the application is dismissed in default, it would amount to dismissal of the suit itself as to attract the application of Order 43 Rule 1 (c) CPC. I may at this very stage observe that if any other view is taken and the order in question is held to be appealable the provision (na) of Order 43 Rule 1, as introduced by amendment made on 1-2-1977 would be redunant and there would have been no occasion to insert such provision if an appeal lay earlier also under Rule 5 or Rule 7 of Order XLIII against an order rejecting an application to sue in forma pauperis. It was urged that as this amendment has been made, this Court would take notice of it and the court granting review could very well give benefit of it. I am unable to appreciate such arguments. THE crux of the matter was whether any appeal did not lie or was rightly rejected as not maintainable. That order was passed as far back as 3-9-1976 much before this amendment was introduced. Obviously, the appellate court deciding the appeal would be correct in saying that the appeal is not maintainable and it would not because maintainable on account of any amendment made much later. If such a view is taken, actually so many matters already finally decided long ago would be re-opened on account of any later amendment in the law. This cannot be the position. I need not go in further detail. There is a Full Bench case of this Court, The Secretary of the State v. Jillo, ILR 21 Alld. page 134. This case is an authority for the proposition that no appeal lies from an order rejecting an application for leave to appeal in forma pauperis and it would apply on all force. The learned Counsel for the respondent tried to distinguish it by arguing that this authority deals with the rejection of the application on merits, while Order 43 Rule 1 (c) CPC, deals with cases of default. I do not find any distincition as such. If the order of rejection on merits could not be appealable, how can an order refusing to restore or order of dismissal- in default can be a decree in suit where simply the application for permission to sue in forma pauperis is rejected. Arguments to the contrary made by the respondents' counsel has no force and I am of the view that this authority is directly on the point. Reliance was also placed by the learned Counsel for the respondent upon the case of Sripati Kuer v. Malti Devi, AIR 1967 Patna 320 taking a different view. But I find that the Allahabad Full Bench is directly on the point and I must follow it. Apart from that, I have discussed the matter myself as well and I am also of the view. Reliance was also placed upon the cases reported in AIR 1960 Mysore 140 and AIR 1939 Madras 14. But what has been laid down in those rulings is that appeal lies from the rejection of the plaint. These rulings do not relate to dismissal of the application under Order 33 CPC in default. Reliance was also placed upon the case reported in AIR 1959 Alld. 159 FB, but this authority is not on the point at all. In fact, it deals with a different matter.;