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Case Number

D.B.C Revision Petn. No. 135 of 1957

Attorney(S)

S.T Porwal, for Petitioner

Judges

Mr. Durga Shanker Dave

Acts

Order 44 Rule 1, as amended by Act No. 66 of 1956,
Order 44 Rule 1 C. P. C.
Section 151 C. P. C.
Order 33 Rule 7(2)
Order 44 Rule 1
Order 33 Rule 7,
Order 44 Rule
Order 33 Rule
Sub-rule (2).

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This revision application challenges an order dated 27-7-1957 of the District Judge, Jodhpur. The petitioner sought leave to file an appeal in forma pauperis against a judgment and decree passed by the Civil Judge, Jodhpur on 17-12-1956 in a money suit. The petitioner presented an application for leave to appeal in forma pauperis. The appellate court (District Judge) ordered that a notice be issued to the respondents. When the matter came up on 27-7-1957, the non-applicants (respondents) submitted that the decree was not contrary to law or to any usage having the force of law and was not otherwise erroneous or unjust; therefore the application should be dismissed under the proviso to Order 44, Rule 1, C.P.C. The District Judge accepted that submission and dismissed the petitioner's application for permission to appeal in forma pauperis. The present revision was filed against that order.

Legal Issues Presented

Whether, once the appellate court has issued notice to the opposite party on an application for leave to appeal in forma pauperis under Order 44, Rule 1 C.P.C., the court loses jurisdiction to reject the application under the proviso to that Rule.
Whether the court may, after issuing notice and after hearing parties, finally reject the application under the proviso (i.e., on the ground that the decree is not contrary to law or to some usage having the force of law or is otherwise erroneous or unjust).
What procedural approach the appellate court should follow when an application for leave to appeal in forma pauperis is presented (specifically: the sequence of perusal of record, hearing the applicant, issuance of notice to the opposite party, and inquiry into pauperism).

Arguments of the Parties

Non-applicants' Arguments

The decree was not contrary to law or to any usage having the force of law, nor was it otherwise erroneous or unjust.
Accordingly, the petitioner's application for leave to appeal in forma pauperis should be dismissed under the proviso to Order 44, Rule 1, C.P.C.

Applicant's (Petitioner's) Arguments

Once the court had issued notice to the opposite party, it had no jurisdiction left to pass any order under the proviso to Order 44, Rule 1; in other words, after issuing notice the court could not reject the application under the proviso but thereafter could only inquire into the pauperism of the applicant.
Reliance was placed on Sin. Panchu Bala Dasi v. Nikhil Ranjan Pal (AIR 1956 Cal 530), which was said to support the proposition that a court which issues notice may not subsequently reject the application under the proviso.
It was further urged that Order 44 Rule 1 had been amended (Act No. 66 of 1956) so that the old proviso no longer existed; therefore the majority view allowing rejection after notice was not tenable.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court in This Opinion
Sin. Panchu Bala Dasi v. Nikhil Ranjan Pal, AIR 1956 Cal 530 (A)	Held that when a court issues notice on an application to prosecute an appeal as pauper, it is not open later to reject the application under the proviso.	This authority was relied on by the petitioner's counsel to support the contention that issuance of notice ousts power to reject under the proviso. The court in this opinion respectfully disagreed with that view and noted that the judges in that case had relied on certain earlier authorities which did not represent the majority or subsequent view.
Mst. Hubraji v. Balkaran Singh, AIR 1933 All 11 (B)	A Single Bench Allahabad decision referenced in support of the Calcutta view (i.e., that once notice is issued the court cannot later reject under the proviso).	Noted as a Single Bench authority which the Calcutta judges relied upon; the opinion points out that this view was not followed by a later Division Bench of the same High Court.
Secy. of State v. Mt. Son Kali, AIR 1934 All 424 (C)	Divisional Bench holding that the court should first consider prima facie whether to reject an application; if not rejected, notice to Government Pleader and respondent is to be issued and the court may then decide after hearing.	Relied upon to show the contrary (majority) view that issuance of notice does not preclude the court from ultimately rejecting under the proviso; the opinion cites the quoted passage and treats it as authoritative contrary to the Single Bench view.
Mt. Powdhari v. Mt. Ram Sanwari, AIR 1934 All 1004 (D)	Full Bench reiteration of the view in Son Kali that the court may, even after notice is issued and parties have appeared, dismiss the application under Section 151 C.P.C. if justified.	Used as further support for the proposition that a court is not precluded from determining whether the decree is contrary to law simply because notice was previously issued.
Mt. Buchan Dai v. Jugal Kishore, AIR 1924 Pat 791 (E)	Patna single-judge authority relied upon in support of the Calcutta view (i.e., that issuance of notice prevents later rejection under proviso).	Noted as part of the body of earlier Patna decisions supporting the Calcutta/Madras view; the opinion records that these Patna decisions were later overruled by a Full Bench.
Raghunath Prasad Sahu v. Mt. Rampiari Kuer, AIR 1928 Pat 118 (F)	Patna authority in the same line as E and G, cited by Calcutta judges.	Noted and observed to have been subsequently overruled by a Full Bench of the Patna High Court (see Tilak Mahto).
Mt. Bibi Sogra v. Radha Kishun, AIR 1929 Pat 27 (G)	Another prior Patna decision relied upon by those favouring the view that notice precludes later rejection under proviso.	Recorded as part of the earlier Patna line of cases which were later overruled by a Full Bench (Tilak Mahto).
Tilak Mahto v. Akhil Kishore, AIR 1931 Pat 183 (H)	Full Bench of Patna overruling the earlier single-judge Patna decisions (E, F, G).	Presented as authoritative in support of the majority view that a court may ultimately reject the application even after notice has been issued; the opinion treats the Full Bench decision as overruling the contrary single-judge decisions.
Benarsi Das v. Munshi Ram, AIR 1934 Lah 72 (I)	Lahore decision expressing the view that an order issuing notice passed in the absence of respondents should not operate to their prejudice; interpretable as supporting the Calcutta/Madras view.	Not followed by the Calcutta High Court; the opinion notes that Calcutta did not accept the Lahore approach and that Lahore itself later adhered to the same expressed view (quoted in text).
Bhairanlal Harakchand Oswal v. Ambikaprasad Ram Ratan, AIR 1937 Nag 150 (J)	Decision of the Nagpur High Court adopting the same view as the Lahore decision (i.e., protecting parties who had not been heard when notice was issued).	Referred to as one of the authorities that took the view aligned with Lahore, but the opinion treats this as part of the minority line not followed by Calcutta/Madras.
Habshi Mian Ilmas Khawaja Sara v. Mehdi Hasan Khan, AIR 1937 Oudh 222 (K)	Full Bench of Oudh stating that even after notice has been issued it is open to the court under the proviso to reject the application unless on perusal it sees reason to think the decree is contrary to law, etc.	Relied upon as supporting the majority view that notice does not oust the court's power to reject under the proviso; quoted in the opinion to show consistent holdings in several jurisdictions.
Maung Nyein v. Burma Electric Supply Co. Ltd., Mandalay AIR 1939 Rang 25 (L)	Rangoon High Court which adopted the view that the court may reject after notice.	Cited as another authority aligning with the majority view that issuance of notice does not preclude later rejection under the proviso.
Nagarattamma v. Nagayya, AIR 1933 Mad 658 (M)	Madras Single Bench decision supporting the Calcutta/Madras line (that issuance of notice precludes later rejection under the proviso).	Noted as a single-judge decision and as part of the Madras line which the opinion records as having long-standing practice; the opinion observes that these decisions proceeded on earlier Patna authorities that were later overruled.
S. K. M. R. M. Soma-sundaram Chettiar v. Rm. Ar. Rr, Rm. Arunachalam Chettiar, AIR 1932 Mad 523 (N)	Another Madras decision following the view that the court should not reject after issuing notice.	Referred to as reflecting Madras High Court practice; the opinion notes that Madras relied on earlier authorities and long-standing practice in taking its view.

Court's Reasoning and Analysis

The court undertook a comparative analysis of the divergent judicial approaches across various High Courts on the procedural question whether issuance of notice to the opposite party under Order 44, Rule 1 C.P.C. precludes the appellate court from later rejecting an application under the proviso (that the decree is not contrary to law or otherwise erroneous or unjust).

Key elements of the court's step-by-step reasoning, drawn from the opinion, are:

The ordinary scheme of Order 44, Rule 1 is that the appellate court, when approached with an application to file an appeal in forma pauperis, should peruse the application, the judgment and the decree and ordinarily make up its mind before issuing notice whether the decree appears to be contrary to law or otherwise erroneous or unjust. If the court, on perusal, finds no such defect, it should reject the application at once; if it does see potential error, it should issue notice to the opposite party (paragraphs 18-19).
There exists a split of authority. Calcutta and Madras High Courts held that if notice is issued the court is thereafter precluded from rejecting the application under the proviso; other High Courts (Allahabad, Oudh, Patna Full Bench, Nagpur, Rangoon) held that issuance of notice does not bar the court from ultimately rejecting the application under the proviso after considering submissions (paragraphs 16, 4-6, 8-14).
The court favoured the majority view (as adopted by the Full Bench decisions and several High Courts) on grounds of legal soundness and conduciveness to ends of justice, noting that some single-judge decisions relied upon by the minority view had been overruled by Full Benches in other jurisdictions (paragraphs 16 and 9-13).
The court emphasised that procedural protections exist for both sides: the Rule itself makes the application "subject, in all matters, including the presentation of such application, to the provisions relating to suits by paupers" and Order 33 Rule 7(2) permits hearing of arguments not only about pauperism but also whether the applicant is subject to any prohibitions — hence the opposite party can raise objections, including those akin to the proviso (paragraphs 20-22).
The court rejected the contention that a notice framed to show cause only against the applicant's pauperism confines the respondent to that topic and bars them from raising that the decree itself is not appealable as a pauper ground; the opinion reasons that the respondent can, when asked to show cause why the applicant should be allowed to appeal as a pauper, also urge that the decree is not contrary to law and therefore appeal should not be allowed (paragraphs 25-27).
Practical concerns about harassment of the applicant (e.g., producing evidence of pauperism only to have the application dismissed on proviso grounds) were considered but found insufficient to determine jurisdictional limits. The court recommended a procedural sequence to avoid such harassment: if the opposite party intends to rely on proviso grounds, they should be heard first; only if the court decides not to reject under proviso should it record evidence as to pauperism (paragraph 24).
The court explained the amended form of Order 44 Rule 1 (Act No. 66 of 1956): the old proviso became sub-rule (2), which requires the appellate court to fix a date for hearing and to peruse the application and judgment and decree after hearing the applicant/pleader. The amendment did not remove the court's discretion to issue notice and hear the opposite party on the proviso-type question (paragraphs 28-29).
The court distilled the procedural position into three concise propositions (paragraph 31-33):
- Ordinarily the court should fix a hearing day, hear the applicant or his pleader, and peruse the papers to decide at once whether to reject; if no defect is seen, reject at once; if the court thinks there may be error, give notice to the opposite party.
- Issuance of notice does not necessarily preclude the court from rejecting the application thereafter if the opposite party can satisfy the court that the applicant's contention was wrong.
- The court should conduct the enquiry into the applicant's pauperism only after concluding that the application is not fit to be rejected under the proviso-type grounds.
Applying these principles to the present case, the court noted that the appellate court did not explicitly express any opinion before issuing notice; on the facts presented the appellate court's conduct could not be said to amount to an exercise of jurisdiction not vested in it nor to a material irregularity in exercising jurisdiction (paragraph 16).

Holding and Implications

Core Ruling:

The appellate court does not lose jurisdiction to reject an application under the proviso to Order 44, Rule 1 C.P.C. merely because it has issued notice to the opposite party; it remains open to the court, after hearing the opposite party, to reject the application if satisfied that the decree is not contrary to law or otherwise erroneous or unjust.

Implications and direct effects (as stated in the opinion):

The proper procedural approach is that the appellate court should ordinarily fix a date for hearing, hear the applicant or his pleader, peruse the application and the judgment and decree and decide whether to reject at once. If the court thinks there is prima facie ground it should then issue notice to the opposite party (paragraph 31).
Issuance of notice to the opposite party does not preclude the court from ultimately rejecting the application under the proviso if, after hearing the opposite party, the court is satisfied that the applicant's contention was wrong (paragraph 32).
The court should only proceed to enquiry into the applicant's pauperism after it has concluded the application is not fit to be rejected on proviso grounds (paragraph 33).
On the specific facts of this case, because the appellate court did not express an opinion before issuing notice, the revising court concluded that the appellate court had not exercised any jurisdiction not vested in it nor committed any material irregularity in the exercise of its jurisdiction (final paragraph). The opinion therefore does not find fault with the appellate court's procedure in the circumstances before it.

Note: The summary above is limited strictly to the statements, reasoning, cited authorities and conclusions contained in the provided opinion and does not include any information or inference beyond that text.

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Narsingh Dass v. Mool Raj

1. This is an application in revision against the order of the District Judge, Jodhpur, dated 27-7-1957, and arises in the following circumstances:

2. The petitioner wanted to file an appeal in the court of the learned District Judge, Jodhpur, against the judgment and decree passed against him by the Civil Judge, Jodhpur, on 17-12-1956, in a money suit. The petitioner presented an application for leave to file an appeal in forma pauperis. The appellate court ordered a notice to be issued to the respondents.

When that application came before the court on 27-7-57, it was submitted by the non-applicants that since the decree was not contrary to law or some usage having the force of law or otherwise erroneous or unjust, it should be dismissed under the proviso to Order 44, R, 1, C. P. C. This argument found favour with the learned District Judge and he dismissed the petitioner's application for permission to appeal in forma pauperis. It is against this order that the present revision application has been filed.

3. Learned counsel for the applicant has urged that the appellate court could reject his application under the proviso to Order 44, Rule 1 at the time when it was presented, but once the court had issued notice to the opposite party, there was no jurisdiction left in the court to pass any order under the proviso.

He means to say that once the notice was issued to the opposite party, the court lost its jurisdiction to dismiss the application under the proviso and thereafter it could only make an enquiry into the pauperism of the petitioner. In support of his argument learned counsel has referred to Sin. Panchu Bala Dasi v. Nikhil Ranjan Pal AIR 1956 Cal 530 (A), in that case it was held that "when a court before which an application to file an appeal in forma pauperis is made does not reject the application in view of the proviso to that rule, but issues notice on the opposite party to show cause why the application to prosecute the appeal as pauper should not be allowed, it is not open to the court at a later stage to reject the application on the ground that under the proviso it is bound to reject it." This observation no doubt supports the contention of the petitioner's learned counsel, but we respectfully disagree with the view taken therein. The learned Judges who decided the above case have observed that "the matter which was raised before them did not come up for consideration before that court ever before."

The learned Judges then relied upon a Single Bench authority of the Allahabad High Court in Mst. Hubraji v. Balkaran Singh AIR 1933 All 11 (B). It appears that the attention of the learned Judges was not invited to the fact that the view taken in the above case was not followed by a Division Bench of the same High Court in Secy, of State v. Mt. Son Kali, AIR 1934, All 424 (C). In that case it was held that

"on receipt of an application to appeal as! a pauper the court has first to consider whether prima facie there is any ground for the rejection of the application. If the application is rejected, the whole matter ends there. If it is not rejected, a notice is to go to the Government Pleader and the respondent and when they appear, the court has to decide on hearing them whether the applicant is in a position to pay the court-fee and further whether the decree is one which is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust."

A similar matter again came before a Full Bench of the same High Court in Mt. Powdhari v. Mt. Ram Sanwari, AIR 1934 All 1004 (D). In that case it was again reiterated following the view taken in the preceding case as follows:

We do not mean to lay down that the court is bound to issue notice to the opposite party; nor do we lay down that once a notice has been issued, the court is compelled to hear the opposite party and cannot change its mind and review its previous order under Section 151 C. P. C. Our view is that there is nothing to prevent the court from hearing counsel and dismissing the application ultimately on the ground that the decree and judgment are not contrary to law, etc., even if notice has been issued and parties have appeared through counsel. Our answer to the question referred to us therefore is that it is open to the Court to consider the question whether the decree appealed from is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust, and the Court is not precluded from determining such question merely because notices to the opposite party and the Government Advocate have been issued previously.

4. It would thus appear that the view taken by the Full Bench of the Allahabad High Court in the above case is contrary to the view which was earlier taken by a single Judge of that Court in AIR 1933 All 11 (B) and these later cases do not seem to have been brought to the notice of the learned Judges deciding the case AIR 1956 Cal 530 (A) because there is no reference to these cases in that judgment. Similarly, the learned Judges in AIR 1956 Cal 530 (A) relied upon the view taken earlier by the learned Judges of the Patna High Court in Mt. Buchan Dai v. Jugal Kishore, AIR 1924 Pat 791 (1) (E), Raghunath Prasad Sahu v. Mt. Rampiari Kuer AIR 1928 Pat 118 (F) and Mt. Bibi Sogra v. Radha Kishun AIR 1929 Pat 27 (G), though those cases were overruled by a Pull Bench of the Patna High Court in Tilak Mahto v. Akhil Kishore AIR 1931 Pat 183 (H).

5. It may be further pointed out that the learned Judges of the Calcutta High Court did not follow the contrary view taken by the learned Judges of the Lahore High Court in Benarsi Das v. Munshi Ram AIR 1934 Lah 72 (I). This case was specifically referred to but it was not followed. It may be mentioned here that the Lahore High Court has subsequently followed the same view in AIR 1934 Lah 72 (I) where it was observed as follows:

"Any order which has been passed behind the back of the party should not operate to the prejudice of that party. Where therefore the order issuing notices is passed in the absence of the respondents, they cannot be precluded as a result of the order from arguing before the court that the decree sought to be appealed against was contrary to law or to some usage having the force of law or was otherwise erroneous or unjust."

The same view has been taken by the Nagpur High Court in Bhairanlal Harakchand Oswal v. Ambikaprasad Ram Ratan AIR 1937 Nag 150 (J).

6. A Full Bench of the Oudh Chief Court also expressed the same view in Habshi Mian Ilmas Khawaja Sara v. Mehdi Hasan Khan AIR 1937 Oudh 222 (K). In that case it was observed that

"when notice has been issued upon an application under Order 44 Rule 1 to the opposite party! and the Government Advocate, it is still open1 to the court under the proviso to that Rule to reject the application, unless upon a perusal thereof and of the judgment and decree appeal ed 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"

The Rangoon High Court took the same view in Maung Nyein v. Burma Electric Supply Co. Ltd., Mandalay AIR 1939 Rang 25 (L).

7. The only authority thus left in support of the view taken by the learned Judges of the Calcutta high Court is Nagarattamma v. Nagayya AIR 1933 Mad 658 (M). It is a decision of a Single Bench and it proceeds on the view taken in AIR 1.928 Pat 118 (F) and AIR 1929 Pat 27 (G) which have been overruled in AIR 1931 Pat 183 (H) as pointed out above. There is one more decision of the Madras High Court holding the same view, viz., S. K. M. R. M. Soma-sundaram Chettiar v. Rm. Ar. Rr, Rm. Arunachalam Chettiar AIR 1932 Mad 523 (N). It appears that the view taken by the Lahore High Court and the Full Bench case of the Patna High Court, referred above, were brought to the notice of the learned Judges, but they did not follow it on the ground that there was a long standing practice of the Madras High Court not to hear the respondent at that stage and it was quite in consonance with the provision of the Civil Procedure Code.

8. It would thus appear that Calcutta and Madras High Courts are of one view and according to this view if the appellate court does not reject the application for leave to appeal in forma pauperis at once and if it issues notice to the opposite party to show cause why the application should not be allowed, then it is not open to the court to reject the application on the grounds mentioned in the proviso to Order 44 Rule 1. On the other hand, Allahabad, Oudh, Patna, Nagpur and Rangoon High Courts are of the view that even after notice is issued, it is open to the court to reject the application under that proviso. We have given our earnest consideration to the arguments which have been given in favour of the different views and we feel inclined to follow the majority view, not because the majority of opinion is on that side but because that view, if we say so with respect is more sound and conducive to the ends of justice.

9. One of the strongest reasons which has been given in support of the contrary view i.e. the view taken by the Calcutta and Madras High Courts is that the proviso limits the court to the perusal of the application and the judgment and decree in deciding the question whether the decree is contrary to law or some usage having the force of law or is otherwise erroneous or unjust and that it does not require the court to go through the record nor does it require that the court should hear the opposite party.

It is true that the ordinary scheme of Order 44 Rule 1 C. P. C. is that when a person approaches the court with an application to permit him to file an appeal in forma pauperis, the court should, before issuing a notice to the opposite party, peruse the judgment, decree and the application and then make up its mind whether the decree is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust. The Rule does not seem to contemplate that the court should issue a notice to the opposite party as a matter of course without looking into the application, judgment and decree.

If, after the perusal of the application, judgment and decree, the court comes to the conclusion that the decree is not contrary to law or to some usage having the force of law or it is not otherwise erroneous or unjust, then it is the duty of the court to reject the application for leave to appeal, at once. Ordinarily, therefore, the court must make up its mind whether the application is fit to be rejected at once. In case where the application is thus rejected there would be an end of the matter. If the application is not so rejected, then a notice should go to the opposite party.

10. The question which however arises is whether after the notice has been issued the court loses its jurisdiction to reconsider the matter according to the proviso or it is still open to it to consider over the matter. We think that in the majority of cases the court should be able to make up its mind before issuing the notice to the other party whether it should reject the application but there can be some cases in which the court may not be able to make up its mind and it may leave the matter to be decided after hearing the opposite party or, there may be some cases in which though the court thinks that the judgment or decree is prima facie contrary to law or erroneous or unjust, the opposite party is able to satisfy the court that its first impression is not correct. We see no reason why in such cases the court should not be able to pass an order under the proviso after hearing the other party. It has been urged that this is not the scheme of the Code of Civil Procedure. In reply to this contention, it may be pointed out that Order 44 Rule 1 clearly provides that the application for leave to appeal in forma pauperis is

"subject, in all matters, including the presentation of such application, to the provisions relating to suits by paupers, in so far as those provisions are applicable"

Now, Order 33 Rule 7(2) provides that when the opposite party appears in response to the notice for receiving evidence, the court shall not only hear arguments which the parties may desire to offer on the question whether the applicant is or is not a pauper, but it has also got to hear arguments whether the applicant is or is not subject to any of the prohibitions specified in Rule 5. In other words, the opposite party has a right to be heard to satisfy the court that the application of a pauper is fit to be rejected under Order 33 Rule 5. The grounds for rejection of an application for leave to appeal in forma pauperis which are embodied in the proviso to Order 44 Rule 1 could not find place in Order 33, since it relates to application for filing original suits in forma pauperis, but when Order 44 Rule 1 provides that

"the application will be subject, all matters including the presentation of application, to the provisions relating to suits by paupers,"

it becomes quite clear that the opposite party has a right not only to challange the correctness of the applicant's assertion about his pauperism, but he can raise other objections also which he could raise under Order 33 Rule 7, if the application was made to file a suit as a pauper. This makes it quite clear that it is not the scheme of the Code of Civil Procedure that the opposite party appearing to contest the application under Order 44 Rule 1, has to confine his evidence or arguments only about the pauperism of the applicant and he is debarred from raising any objection whatsoever.

11. What is meant to say is that it does not appear to be the scheme of Order 44 Rule 1 that the opposite party has no right to show that the applicant's petition for leave to appeal in forma pauperis is fit to be rejected under the proviso. It is true that the Rule does not seem to contemplate that the opposite party should be allowed to advance elaborate arguments at the stage of allowing the application for leave to appeal, but at the same time the Rule does not prohibit the court from hearing the opposite party to help it in making up its mind whether the error pointed out by the applicant is in fact not an error and that the decree is not contrary to law or some usage having the force of law; nor is it erroneous or unjust.

12. Another argument given against the majority view is that if the court proceeds to reject the application after giving notice to the opposite party, the applicant would be put to a lot of harassment and that He would also be put to the trouble and expense of producing witnesses to prove his pauperism only to find that all that evidence is of no use since his application is dismissed on the preliminary ground arising out of the applicability of the proviso.

In our view, the argument relating to the Inconvenience of the parties is of little weight in determining the question about the jurisdiction of the court. Moreover, the harassment to the applicant can be avoided easily, only if the court proceeds in a proper manner. If the opposite party wants to raise any objection on the basis of the proviso it should be heard first. The court should record the evidence relating to the pauperism of the applicant only if it does not proceed to reject the application under the proviso. In case the application is rejected under the proviso after hearing both the parties, there would be no need of recording evidence about the applicant's pauperism. If the court proceeds in this manner, there can be no harassment to the applicant in producing his evidence.

13. Another argument given in support of the contrary view is that the notice which is given under Order 44 to the opposite party is only for showing cause against pauperism and therefore the opposite party cannot be heard about the proviso. It may be pointed out that Order 44 itself does not refer to a notice of a particular kind. It is Appendix G Form No. 11 which prescribes a notice to be given to the opposite party to show cause why the applicant should not be allowed to appeal as a pauper". It has been urged that since the notice is only 'to show cause against the applicant being allowed to appeal as a pauper, the opposite party has only to show whether the applicant is a pauper or not, and no more. In our opinion, this argument is also not tenable.

If the decree against which the applicant wants to file an appeal is not contrary to law or to some usage having the force of law or is otherwise not erroneous or unjust, the court can-

not allow the applicant to file an appeal. We see no reason why the opposite party cannot urge this as one of the grounds for not allowing the applicant to file an appeal as a pauper when he is asked to show cause why the applicant should not be allowed to appeal as a pauper.

14. Lastly, learned counsel for the petitioner has urged that Order 44 Rule 1 has been amended and since the proviso does not exist any longer, the majority view expressed above is not tenable. In our opinion, this argument is not correct. It is true that Order 44 Rule 1, as amended by Act No. 66 of 1956, has undergone some change. Rule 1 is now divided into two parts and the old proviso has been numbered as Sub-rule (2). According to this change the appellate court is now required to fix a date for hearing the applicant or his pleader and it further requires that after hearing the applicant or has pleader if they appear on the day fixed, and after perusing the application and the judgment and decree, it should reject the application unless 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.

The only change thus made is that a day for hearing should be fixed and the applicant or his pleader should be heard before the application is rejected. The remaining provision, however, remains unchanged. Sub-rule (2) does not prohibit the court from issuing a notice to the opposite party and hearing the same, if it thinks proper, on the question whether the judgment and decree appealed from is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust.

15. To put the matter briefly the position of law, in our opinion, is as follows:

(1) When an application for leave to appeal as forma pauperis is presented, the appellate court should fix a day for hearing, and then, after giving a hearing to the applicant or his pleader if he appears on that day, the court should peruse the application and the judgment and decree appealed from. Ordinarily, it must make up its mind at once whether the decree is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust. If it finds that the decree or judgment does not contain any defect of this type, it must reject the application. In case it thinks that there is some such error, then it should give notice to the opposite party.

(2) The mere fact, however, that the application is not rejected at once and a notice is issued to the opposite party would not mean that the court would be precluded from rejecting the application if the opposite party is able to satisfy the court that the applicant's contention was wrong and that the decree is really not contrary to law or to some usage having the force of law or that it is not otherwise erroneous or unjust.

(3) The court should proceed to enquire into the pauperism of the applicant only after it has definitely come to the conclusion that the application is not fit to be rejected on the above grounds.

16. In the present case, the appellate court did not express any opinion before it issued notice to the opposite party. Under the circumstances, it cannot be said that it has exercised jurisdiction which was not vested in it or that it has committed any material irregularity in exercise of its jurisdiction.

Narsingh Dass v. Mool Raj

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Non-applicants' Arguments

Applicant's (Petitioner's) Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Narsingh Dass v. Mool Raj

Comments