1. This is an application of an unsuccessful plaintiff to appeal as a pauper. She was allowed to sue as a pauper in the Court below. By our order of 5th September 1938 we stated:
We have gone through the judgment of the Court below and the application for leave to appeal as a pauper. We consider that it has been established that the case does come within the provisions of the order of pauper appeals. Accordingly, we direct that notice should issue to the opposite party to show cause why this application should not be allowed. The notice will be solely on the question as to whether the appellant is or is not a pauper,
and notice was also to issue to learned Government Advocate. Today the Standing Counsel for Government states that he does not desire to oppose the application. In fact, under the provisions of Order 44, Rule 2, no notice need have been issued. Mr. Baleshwari Prasad for the respondents has objected to the previous order and claims that he is entitled to argue on the merits of the proposed appeal and to show that it does not come under the proviso to Order 44, Rule 1. He refers for this proposition to a Pull Bench ruling Mt. Powdhari v. Mt. Ram Sanwari : AIR1934All1004 shows:
By the order issuing notice the Division Bench did not express any opinion as regards 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.
2. The Full Bench decided that, under these circumstances, the mere issue of notice did not preclude the Bench hearing the matter after the issue of notice from considering 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. On p. 965 the Full Bench further observed:
We do not of course mean to lay down that the Court is bound to issue notice to the opposite party, nor do we lay down that once 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 161, Civil P.C.
3. The Pull Bench therefore does not support the proposition advanced by Mr. Baleshwari Prasad. Mr. Baleshwari Prasad however points out that the book of rules framed by this High Court has an amendment to this Order 44, Rule 1 as follows:
Provided further that no application under this rule shall be allowed unless a notice of the application has been given to the proposed respondents.
4. This amendment, he states, is not mentioned by the Full Bench ruling and he argues that it was not brought to the notice of the Full Bench. The amendment la dated prior to the Full Bench ruling as the amendment is dated 14th January 1933 and the Full Bench ruling is of 3rd September 1934, almost two years subsequent. There is a passage on p. 964 in the Full Bench ruling which states:
No doubt there is no express provision in Order 44 applicable to appeals for the issue of a notice but the provisions, in so far as they are applicable, contained in Order 33 ought to be understood to be incorporated inasmuch as Rule 1 expressly lays down.
5. This refers to the words in Rule 1:
Subject, in all matters including the presentation of such application, to the provisions relating to suits by paupers, in so far as those provisions urn applicable.
6. Obviously, the provisions in Order 33, Rule 6 in regard to notice are applied in this manner to Order 44, Rule 1. The amendment on which counsel lays stress makes provision only for notice to the respondent and makes no provision for notice to the learned Government Advocate or Standing Counsel, which is contained in Order 33, Rule 6, and which is the practice of this Court in cases where the proposed appellant has not been permitted to appear as a pauper in the Court below. The Full Bench therefore was perfectly correct, in our opinion with due respect, in referring to the provisions of Order 33 for the issue of notice. Now the argument of learned Counsel is that the amendment directing notice to issue to the respondent implies that the notice shall entitle the respondent to argue the matters referred to in the proviso to Rule 1. If this had been the intention of this High Court in adding an amendment to Order 44, Rule 1, we consider that the amendment would have stated this matter plainly and that the amendment would have altered the wording of proviso 1. The wording of the provision has not been altered and it directs the Court to reject the application unless upon a perusal thereof and of the judgment and decree certain matters appear to the Court. Now the word 'perusal' implies that this is not to be the subject of argument by counsel and that there is no right of counsel to argue. At the most it may be argued that the Full Bench ruling states that the Court may, if it desires, obtain the assistance of counsel. But the Full Bench ruling nowhere lays down that the Court is bound to hear counsel on the point. The procedure in Order 33 shows that there is rejection of an application to sue as a pauper under Rule 5 and this may be based on Rule 5, Sub-rule (d) 'where his allegations do not show a cause of action;' that is the trial Court may examine the merits of the proposed plaint, but it does not examine those merits after hearing counsel for each side on the subject. To hear counsel for each side on the merits of the proposed appeal would? be tantamount to giving some decision on the merits of the appeal. In our opinion, this is exactly what Order 44, Rule 1 proviso is designed to avoid. The course is objectionable. Firstly, because such an expression of opinion by an Appellate Court after hearing, counsel is something which will prejudice one party or the other, and secondly, this would introduce a difference between the procedure of the trial Court and of the Appellate Court.
7. For these reasons, we think that there are no merits in the argument of learned Counsel for the respondents and that he has no right whatever to be heard at any stage of the proceedings under Order 44, Rule 1 on the merits of the proposed appeal. All that he can argue is on the question of whether the proposed appellant is or is not a pauper and on that point he has not brought any affidavit or other materials. He asked for further time. The order was dated, nearly a year ago on 5th September 1938. We think there are no merits in the request for further time. As already pointed in the present case the appellant sued as-a pauper and under Order 44, Rule 2 proviso the issue of notice was not necessary. We accordingly hold that the applicant is a pauper and we allow the applicant to appeal as a pauper.