1. This is an application for the revision of an order passed by the learned Subordinate Judge of Jaunpur, rejecting the applicant's application for leave to appeal as a pauper under Order 44, Rule 1, Civil P.C. That order was passed after notice had been issued not only to the Government Pleader but to the respondent, and the present application in revision is made on the ground that the application in the court of the Subordinate Judge could not be rejected under the proviso to Order 44, Rule 1, Civil P.C. at that stage, i.e. after the Court had had an opportunity of rejecting the application summarily, and had, instead of rejecting summarily, issued notices to the other parties concerned. The whole procedure relating to pauper appeals is set forth, in the two rules of Order 44. Rule 1 prescribes that 'a person who is unable to pay the requisite fee may present an application accompanied by a memorandum of appeal' and may be allowed to appeal as a pauper
subject in all matters...to the provisions relating to suits by paupers in so far as those provisions are applicable.
2. But the proviso shows that the court must reject the application unless
upon a perusal thereof and of the judgment and decree appealed 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.
3. It is therefore clear that the court must in considering these applications always be mindful of the provisions relating to suits and be ready to apply them to applications for leave to appeal if they are capable of application. Special stress is laid in Rule 1 on the provisions relating to the presentation of the application, and Order 33, Rule 3 (which relates to suits) provides that the application shall be presented to the Court by the applicant in person unless he is exempted, and it is clear therefore that this provision will also apply to the presentation of an application for leave to appeal. Order 33 then goes on to, show that the court may examine the applicant regarding the merits of the claim and the property of the applicant (Rule 4) and in Rule 5 are enumerated the reasons for which the court may 'reject an application for permission to sue as a pauper'. If the application is not thus summarily rejected the court must issue notices to the opposite party and to the Government Pleader
for receiving such evidence as the applicant may adduce in proof of his pauperism and for hearing any evidence which may be adduced in disproof thereof.
4. In short the Court may under Order 33 reject an application for leave to sue as a pauper summarily, i.e., after an examination of the applicant or his agent for any of the reasons given in Rule 5 but if the Court does not so reject the application summarily it must issue a notice and hold an enquiry to decide whether the applicant can prove pauperism. If pauperism be proved the suit proceeds as an ordinary suit would with the one exception that the plaintiff is not required to pay a Court-fee (Rule 8). There is, it will be observed no provision in Order 33 by which after issuing. notice the Court may reject the application on the ground that it
sees reason to think that the decrees is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust
it must try out the suit on its merits.. I have laid some stress on these rules-in Order 33 because the counsel for the opposite party has based his defence to the present application largely on them.
5. For the applicant it is urged that there is no provision in Order 44 for the rejection of an application for leave to appeal in form a peris after issue of notice, and it must therefore follow that the rejection of such an application for the reasons given by the learned Subordinate Judge can only be ordered in a summary proceeding, i. e., before notice has been issued to the opposite party and Government Pleader. This view has been taken in three decisions by the Benches of the Patna High Court viz., the cases of Chander Kala Kuer v. Dulhin Raja Kuer AIR 1929 Pat 31, Buchan Dai v. Jugal Kishore A.I.R. 1924 Patna 791 and Raghunath Prasad Sahu v. Rampiari Kuer A.I.R. 1928 Patna 118. These decisions are unquestionably in favour of the applicant, and no authority is quoted on the other side, nor does it appear that there is anything in the Code itself which will really lend support to the argument of the counsel for the opposite party. When once notice has been issued the Court may it is true, enquire further into the question of the pauperism of the applicant (this is clear from Order 44, Rule 2) and also by the analogy drawn from the rules in Order 33 but it cannot fall back on the proviso to Rule 1 which relates only to summary rejection upon a persnal of the judgment and decree appealed from. It has been argued that as notice has been issued to the opposite party it must have been intended that he should have a chance of pointing out that the decree is
contrary to law or some usage having the force of law or is otherwise erroneous or unjust,
6. That is true, and he will have an opportunity of proving this to the Court when the appeal is heard on its merits. But he has no right to put back the hands of the clock and ask the Court to reject the application summarily under that special proviso when the proceedings have already passed beyond the summary stage. That this is so is indeed indicated by the form of the notice issued to him, which only calls on him to show why the applicant should not be allowed to appeal as a pauper. It does not call on him to show why the application should he rejected because the decree is contrary to law &. The notice in fact relates only to the application and not to the appeal against the decree.
7. Two other legal points were taken by the opposite party but they can be shortly disposed of. It was argued that the plea of the applicant cannot be taken at this stage because it was not urged in the lower Court, and I have been referred to the decision in Ram Kinker Rai v. Tafani Ahir : AIR1931All35 , but this relates to second appeals and is not relevant to an application for revision. It has further been argued with reference to the decisions in Yad Ram v. Sunder Singh. A.I.R 1923 All 392 and Balakrishna Udayar v. Vasudeva Ayyar AIR 1917 P.C 71 that an application for revision can only be made on a point of jurisdiction. I accept this argument, but in the present case the point is that the Court has acted with material irregularity in the exercise of its jurisdiction. If the rules of procedure do not clothe the Court with jurisdiction to reject an application of this kind after the issue of notice to the opposite party then it is clear that Section 115, Civil P.C. will apply and that an application for revision will lie. For these reasons I allow the application with costs, set inside the order and decree of the Subordinate Judge, and direct that the application be restored and that the hearing proceed according to law.