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Mohd. Abdul Azeem Vs. Syed Miram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberLetters Patent Appeal No. 49 of 1958
Judge
Reported inAIR1961AP65
ActsCode of Civil Procedure (CPC) , 1908 - Order 44, Rules 1 and 2
AppellantMohd. Abdul Azeem
RespondentSyed Miram
Appellant AdvocateM.J. Reddy, Adv. for ;D.M. Deshmukh, Adv.
Respondent AdvocateG. Venkataramasastry, Adv. for ;R. Rajeshwararao, Adv.
Disposition Appeal allowed
Excerpt:
civil - acceptance of appeal - order 44 rules 1 and 2 of code of civil procedure, 1908 - respondent permitted to file appeal in forma pauperis - whether it is open for court to reopen question whether appeal should be admitted in forma pauperis when once leave was granted - once application accepted under order 44 rule 2 - court cannot reject unless by way of review. - .....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. 2. 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 was served on the respondent.....
Judgment:

Chandra Reddy, C.J.

1. 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.

2. 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 was 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.

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

'Be posted on 31-8-1956 (Friday) for arguments regarding the pauper petition.' The matter was heard on 4-10-1936 and they decided that this should be placed before the same Bench, which passed the order on 27-8-1956.

4. 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 15-12-1055 could not be regarded as one admitting the appeal under Order 44, Rule 1, C.P.C.

5. 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 nor 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.

6. The only controversy in this appeal is whether it was open to the learned Judge to dismiss the petition, having regard to the iact that leave was already granted by a Bench of 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 thai ap plication unless it he 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. Rut when once an order has been passed finally, it is not open to the respondent if impeach that order except, as already stated, by way of review.

7. It is contended by Sri Venkatarama Sastry, learned counsel for the respondent, that it is within the competence of the 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 some thing 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 reopen that question. The two situations are different and distinct. In the circumstances, we cannot give effect to the objection of the respondent.

8. In the result, the Letters Patent appeal is allowed. There will be no order as to costs.

9. The appeal will be posted for final disposal on 13-4-1960. The appellant will file typed papers of all the documents and evidence in the case into court in three sets before 7th April 1960 and supply the respondent with one set thereof free of cost.


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