Mohd. Abdul Azeem v. Syed Mram. .

The Judgment of the Court was delivered by

Chandra Reddy, C.J

2. The only question for consideration in this appeal is whether it is open to this Court to reopen the question whether an appeal should be admitted in forma pauperis when once leave was granted in that behalf.

3. The appellant filed an application for permission to file the appeal in forma pauperis and, when the matter came before Vithal Rao Deshpande and Taki Bilgrami, JJ. of the Erstwhile Hyderabad High Court, the learned Judges directed notice to be issued to the Government Pleader to enquire into whether the appellant was a pauper or not. On receipt of the report, it appears that the matter was heard and ultimately the learned Judges allowed the petition to file the appeal in forma pauperis and directed the office to take further action. Thereupon, the appeal was registered as a regular appeal and summons were served on the respondent on 30-3-1956. In response to the summons, the respondent appeared and wanted to have the order granting leave to appeal in forma pauperis vacated.

4. This matter was posted before another Bench consisting of Srinivasachari and Taki Bilgrami, JJ. on 27th August 1956 and the learned Judges passed the following order:

“Be posted to 31-8-56 (Friday) for arguments regarding the pauper petition.”

5. The matter was heard on 4-10-1956 and they decided that this should be placed before the same Bench, which passed the order on 27th August 1956.

6. Meanwhile, the High Court of Andhra Pradesh was formed and the Andhra High Court came to have jurisdiction over the whole of Andhra Pradesh and Taki Bilgrami ceased to be a Judge of this Court, with the result that the matter was posted before our learned brother Srinivasachari, J. The learned Judge decided that the order dated 15th December 1955 could not be regarded as one admitting the appeal under Order 44, Rule 1 C.P.C

7. He then went into the question whether the requirements of Order 44, Rule 1 were fulfilled and reached the conclusion that the Judgment under appeal was neither contrary to law or to some usage having the force of law or was otherwise erroneous or unjust. The learned Judge was of the opinion that the contention raised by the appellant, namely, that the trial Court had not weighed the evidence properly, was not a ground for admission of appeal under Order 44, Rule 1. He also ruled that there was no substance in the other contention, namely, that the trial Court had not considered the particular custom or usage set up by him, for the reason that there was no custom involved or set up in the case. In the result, he dismissed the petition for leave to appeal in forma pauperis.

8. The only controversy in this appeal is whether it was open to the learned judge to dismiss the petition, having regard to the fact that leave was already granted by a Bench of the erstwhile Hyderabad High Court. In our opinion, when once an application under Order 44, rule 2 is accepted, it is not competent for the court to reject that application unless it be by way of review. It is nobody's case that any application for review of the previous order was made by the respondent. The question whether an application comes within the purview of Order 44, rule 2 or not is one that has to be decided before the application under Order 44, Rule 1 is allowed. But when once an order has been passed finally, it is not open to the respondent to impeach that order except, as already stated, by way of review.

9. It is contended by Sri Venkatrama Sastry, learned counsel for the respondent, that it is within the competence of High Court to issue notice to the respondent in an application under Order 44, rule 2 C.P.C We agree that it is permissible for the High Court to issue notice before the application is allowed. But that is not the something as saying that after the appellant is permitted to file the appeal in forma pauperis it is open to the respondent who had received the notice after the admission of the appeal to re-open that question. The two situations are different and distinct. In the circumstances, we cannot give effect to the objection of the respondent.

10. In the result, the letters patent appeal is allowed. There will be no order as to costs.

11. The appeal will be posted for final disposal on 13th April 1960. The appellant will file typed papers of all the documents and evidence in the case into Court in three sets before 7th April 1950 and supply the respondent with one set thereof free of cost.

Appeal allowed.