1. In this case the applicant had filed an appeal in this High Court in forma pauperis. The case was put up before a Division Bench which made the following order: 'Let notice goto the respondents and also to the Government Advocate.' When after notices had been served the matter came up for disposal again, an objection was raised that counsel for the respondents and the Government Advocate could not show cause against the applicant being allowed to appeal as a pauper except in so far as the question of her pauperism was concerned. In view of some conflict of opinion the Division Bench has referred the following question to the Full Bench:
Is it open to a Court, hearing an application under Order 44, Rule 1, Civil P.C., after issuing notice to the opposite party and the Government Advocate, 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, or is it precluded from determining that question by the fact that the order issuing notice impliedly held that the decree was not contrary to law or usage having the force of law and that it is not otherwise erroneous or unjust, or is it precluded from considering this question by the fact that notice was issued.
2. Following certain earlier decisions of the Patna High Court, a learned Judge of this Court in Mt. Hubraji v. Balkaran Singh 1933 All. 11, expressed the opinion that when once notice has been issued by the Court under Order 44, Rule 1, Civil P.C., the Court cannot fall back on the proviso to JJ. 1 which relates only to summary rejection upon a perusal of the judgment and decree appealed from, and if it does so the Court acts with material irregularity in the exercise of its jurisdiction in rejecting the appeal summarily. Since then a Full Bench of the Patna High Court in Talak Mahto v. Akhil Kishore 1931 Pat. 183, has reviewed the ease law and arrived at a contrary conclusion.
3. In the case of Masuria Din v. Moti Lal 1933 All. 925 another Division Bench had a case in which notice had 1st been issued by the Court below and then without hearing the counsel for the opposite party or the Government Pleader the Court had reviewed its previous order and summarily rejected the appeal, being of the opinion that on a careful perusal of the judgment and the decree there was no reason to think that the decree was contrary to law or otherwise erronoous or unjust. The learned Judges did not in express terms mean to follow the ruling in Mt. Hubraji v. Balkaran Singh 1933 All. 11, because they remarked that they need not consider such oases and would prefer to 'decide the matter from another standpoint. ' They came to the conclusion that the Judge's second opinion was perhaps influenced by certain objections without hearing the pauper upon them and in that view of the matter the order complained of was considered to be without jurisdiction and was set aside. In the course of the judgment Young, J., remarked:
The Court has no option but to reject the application, unless having read the application and tins judgment it has definitely come to the conclusion that there is a prima facie case to be heard. The Court having once come to that conclusion and passed the necessary order issuing notice, ii; is, in our opinion, funetus officio as regard a summary dismissal. The Judge cannot, thereafter disregard his previous conclusion and dismiss the application summarily. He is hound before he does anything further to hear the parties.
4. We do not think that the learned Judge meant to say that when a Judge hears the parties he cannot come to a conclusion against the pauper. But if it was intended to lay down that the issue of notice makes the Judge functus officio then with great respect we would not be prepared to agree, Indeed, the Judge cannot become functus officio because he has yet to pass an order either disallowing the application or allowing the pauper to appeal.
5. In the case of Secy. of State v. Sonkali 1934 All. 424, another Division Bench, of which one of us was a member, came to the conclusion that there was nothing to prevent the Court from hearing the Government Pleader and rejecting the appeal on the ground that it was contrary to law or to some usage having the force of law or was otherwise erroneous or unjust even though notice had been previously ordered to be issued. But the case ofMasuria Din v. Moti Lal 1933 All. 925, had not been cited before the Bench.
6. The Madras High Court in Samasundaram Chettiar v. Arunachalm Chettiar 1932 Mad 523, has expressed an opinion which is partly in favour of the applicant before us,, but not wholly so. The decision appears to be based to a large extent on the long established practice which prevails in that Court. It seems to us that when a Court before which an application for leave to appeal as a pauper comes up merely orders, 'Let notice go' it does not necessarily make up its mind finally that the judgment is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust. There is nothing in the proviso to Order 44, Rule 1 to compel a Court there and then to make up its Blind finally and prevent it from postponing its opinion till counsel for the opposite party or for the Government have been heard.
7. No doubt there is no express provision in Order 44 applicable to appeals for the issue of a notice, but the provision s in so far as they are applicable, contained in, Order 33, ought to be understood to be incorporated in as much as Rule 1 expressly lays down. It is therefore difficult to hold that a Court has no jurisdiction to order notices to issue before deciding the question. It would follow that it cannot be seriously contended that a mere order directing notice to issue implies a final adjudication as to the right of the applicant to appeal as a pauper, provided ha establishes the fact of his pauperism.
8. Appendix (G), Form No. 11 which is part of the Code contains the form of notices of appeal in forma pauperis which may be issued under Order 44, Rule 1. In some judgment it; has been wrongly supposed that notice on this form is issued under Rule 2 and not under Rule 1. The form itself expressly states that it is a notice under Order 44, Rule 1. Under this notice the opposite party is called upon to show cause why the applicant should not be allowed to appeal as a pauper and that opportunity would be given to him of so doing. It is therefore quite clear that when notice has been ordered to be issued to the opposite party the latter is expected to appear and show cause against the whole application which would necessarily include the question not only whether the applicant is a pauper, but also whether the judgment and decree are also Contrary to law or to some usage having the force of law or is otherwise erroneous or unjust.
9. 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 151, Criminal 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.
10. Our answer to the question referred to us therefore is that it ia 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.