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Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
Judges
Acts
  • Order XII, rule 1 of the Supreme Court Rules makes. Order XLV of the Code
  • provisions of Order XLIV of the Code of Civil Procedure
  • Order XLIV, rule I of the Civil Procedure Code
  • CIVIL PROCEDURE CODE
  • rule 1 of Order XLIV
  • Order XLV, rule 7
  • rule 22 of rules
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
Judges
Acts
  • Order XII, rule 1 of the Supreme Court Rules makes. Order XLV of the Code
  • provisions of Order XLIV of the Code of Civil Procedure
  • Order XLIV, rule I of the Civil Procedure Code
  • CIVIL PROCEDURE CODE
  • rule 1 of Order XLIV
  • Order XLV, rule 7
  • rule 22 of rules
Smart Summary

Factual and Procedural Background

This opinion addresses an application filed under Article 133 of the Constitution seeking leave to appeal to the Supreme Court. The applicant also filed an application under Order XLIV, rule 1 of the Civil Procedure Code to be allowed to appeal in forma pauperis, attaching a list of properties to demonstrate pauperism. Notice was issued in May 1952, and the matter was heard in September 1952, when a question of maintainability of the application was raised.

Legal Issues Presented

  1. Whether an application under Order XLIV, rule 1 of the Civil Procedure Code for leave to appeal in forma pauperis is maintainable when the appeal is from a decree of this Court to the Supreme Court.
  2. Whether the provisions of Order XLIV of the Civil Procedure Code apply to appeals to the Supreme Court or only to appeals from subordinate courts to this Court.
  3. Whether this Court has the power to waive the security for costs and expenses required under Order XLV, rule 7 of the Civil Procedure Code for appeals to the Supreme Court in cases where the applicant is a pauper.

Arguments of the Parties

Applicant's Arguments

  • The applicant relied on the provisions of Order XLIV, rule 1 of the Civil Procedure Code, contending that the language of the rule is broad enough to include appeals from this Court to the Supreme Court.
  • The applicant sought to demonstrate pauperism by attaching a list of properties to support the request for leave to appeal in forma pauperis.
  • Reference was made to a passage in Munni Ram Awasty v. Sheo Churn Awasty and Mussamat Neeut Kooer, suggesting support for the application.

Court's Response to Arguments

  • The Court rejected the argument that Order XLIV applies to appeals from this Court to the Supreme Court, interpreting the Order as applicable only to appeals from subordinate courts to this Court.
  • The Court noted that Order XLV of the Civil Procedure Code, as adapted, governs applications for leave to appeal to the Supreme Court, requiring security for costs and expenses, without provision for waiver on grounds of pauperism.
  • The Court dismissed reliance on the passage from Munni Ram Awasty, noting it was a suggestion by a reporter and not part of the judgment, and emphasized adherence to the Civil Procedure Code and relevant rules.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Munni Ram Awasty v. Sheo Churn Awasty and Mussamat Neeut Kooer Suggested support for in forma pauperis appeals Rejected as the passage cited was a reporter's suggestion, not part of the judgment; Court relied instead on statutory provisions.
Jagadannad Asram v. Rajendra Roy Support for interpretation of procedural rules Used to support the Court's view that Order XLIV does not apply to appeals to the Supreme Court.
Ramkishen Lal v. Manna Kumri Support for procedural interpretation Referenced to uphold the Court's conclusion on the application of procedural rules.
Amba alias Padmavah v. Srinivasa Kamathi Support for procedural interpretation Relied upon to affirm the Court's stance on the non-applicability of Order XLIV to appeals to the Supreme Court.
Sm. Attar Kaur v. Lala Gopal Das Support for procedural interpretation Supported the Court's interpretation regarding procedural requirements for leave to appeal.

Court's Reasoning and Analysis

The Court analyzed the provisions of the Civil Procedure Code, particularly Orders XLIV and XLV, in the context of applications for leave to appeal to the Supreme Court. It found that Order XLIV, rule 1, applies only to appeals from subordinate courts to this Court and does not extend to appeals from this Court to the Supreme Court. The Court emphasized that Order XLV, as adapted, governs applications for leave to appeal to the Supreme Court, mandating security for costs and expenses without provision for waiver based on pauperism.

The Court further reasoned that the Bench hearing the application for leave to appeal is not an appellate court relative to the Bench that passed the decree, reinforcing the non-applicability of Order XLIV. The Court also noted that relevant Supreme Court Rules confirm the applicability of Order XLV and not Order XLIV to such appeals. Reliance on a non-binding suggestion in a reported case was dismissed as insufficient to override the statutory framework.

Holding and Implications

The application for leave to appeal in forma pauperis under Order XLIV, rule 1 of the Civil Procedure Code is not maintainable in appeals from this Court to the Supreme Court.

The application was dismissed with costs. The decision clarifies that Order XLIV applies only to appeals from subordinate courts to this Court, while appeals to the Supreme Court are governed by Order XLV and associated rules, which require security for costs and expenses regardless of the applicant's pauperism. No waiver of these requirements is permissible under the current legal framework. This ruling restricts the availability of in forma pauperis appeals under Order XLIV in the context of Supreme Court appeals and reinforces procedural compliance for such appeals. No new precedent beyond the immediate parties was established.

    Om Prakash Gupta v. State Of Uttar Pradesh

    B. Malik, C.J:— In an application filed under Article 133 of the Constitution for leave to appeal to the Supreme Court the applicant filed an application under Order XLIV, rule I of the Civil Procedure Code for being allowed to appeal in forma pauperis and attached to the application the list of properties held by him to show that he was really a pauper. Notice of this application was issued by a Bench of this Court in May, 1952. On the application coming up before us in September, 1952, a point was raised that the application was not maintainable.

    We have heard learned counsel in support of the application at some length and we are not satisfied that in a matter of this kind we can grant leave to appeal in forma pauperis. There are only two provisions of the Civil Procedure Code that need be considered in this connection. Learned counsel has strongly relied on the provisions of Order XLIV of the Code of Civil Procedure and has urged that the language of rule 1 of Order XLIV is wide enough to include not only an appeal from a subordinate court but an appeal from a decree of this Court to the Supreme Court. We do not think there is any substance in this argument. Order XLIV must be read as a whole and there are clear indications in that Order that it applies only, to appeals which are entertainable by this Court against the decisions of courts subordinate to it. For example, the proviso to rule 1 is as follows:

    “Provided that the court shall reject the application unless, upon perusal thereof and of the judgment and decree appealed from, it sees reason to think that the decree is contrary to law or to some usage having the force of law, or is otherwise erroneous or unjust.”

    In rule 2 it is provided that—

    “The inquiry into the pauperism of the applicant may be made either by the appellate court or under the order of the appellate court by the court from whose decision the appeal is preferred.”

    A Bench of this Court, hearing an application for leave to appeal cannot be said to be an appellate court with reference to the Bench which had decided the appeal and had passed the decree. Order XLIV clearly provides for applications for leave to appeal to this Court against orders passed by lower courts. This Order, we feel satisfied, does not apply.

    Order XLV of the Civil Procedure Code was made applicable under the Adaptation of Laws Order, 1950, to applications for leave to appeal to the Supreme Court. It is provided in that Order that in the heading for “King in Council”, “Supreme Court” is to be substituted and throughout that Order for “His Majesty in Council”. “Supreme Court” is to be substituted. Reading Order XLV and reading “Supreme Court” in place of “His Majesty in Council” Order XLV, rule 7 provides that the applicant must, within the period of time fixed or within such extended period, as may be granted, furnish security for the costs of the respondent and also deposit the amount required to defray the expense of translating, transcribing, indexing, printing and transmitting to the Supreme Court a correct copy of the whole record of the suit. So far as we can see the rule gives this Court only limited power of extending the period mentioned in the rule but it does not provide anywhere that this Court can direct that the security and amount needed for defraying the expenses mentioned above need not be deposited by the applicant in case he is found to be a pauper. The rule makes it obligatory on this Court to insist on the deposit of the amounts mentioned in that rule. Reference to the rules framed by the Supreme Court as well as this Court also supports the same conclusion. Order XII, rule 1 of the Supreme Court Rules makes. Order XLV of the Code applicable to applications for leave to appeal to the Supreme Court. There is no provision making Order XLIV applicable to such cases. Order XIV of the Supreme Court Rules makes provision for special leave to appeal to the Supreme Court in forma pauperis, and Order XLIV of the Civil Procedure Code has been made applicable to such applications for special leave by rule 4 of the said Order. Under Chapter XXIII, rule 22 of rules framed by this Court applications for leave to appeal to the Supreme Court are governed by the provisions of Order XLV of the Code. We are, therefore, satisfied that this application does not lie and it must fail.

    Learned counsel, Sri A.P Dube, has, however, relied on a passage at page 136 in Munni Ram Awasty v. Sheo Churn Awasty and Mussamat Neeut Kooer(1). The passage, however, is not contained in the judgment of Lord Langdale, who decided the case, but was a suggestion made by Mr. Moore, which was for some reason, incorporated in the report. It is not necessary to consider how far the suggestion made by Mr. Moore was in accordance with the provisions of the Bengal Regulations XXVIII of 1814. The application must now be decided in accordance, with the provisions of the Civil Procedure Code read with the various relevant rules that we have discussed above.

    The view taken by us is supported by decisions of other High Courts Jagadannad Asram v. Rajendra Roy(2); Ramkishen Lal v. Manna Kumri(3); Amba alias Padmavah v. Srinivasa Kamathi(4) and Sm. Attar Kaur v. Lala Gopal Das(5).

    The application has no force and is dismissed, with costs.

    Application dismissed.

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    Om Prakash Gupta v. State Of Uttar Pradesh
    (Oct 25, 1952)