1. This is an application in revision from an order of the learned District Judge of Allahabad.
2. A pauper had been unsuccessful in a case tried by the Munsif. He applied to the District Judge under Order 44, Rule 1. to be allowed to appeal as a pauper. The learned Judge issued notice upon this application to the opposite party and to the Government Pleader. Thereafter it appears that he decided the application summarily without hearing either of the parties to whom, notice had gone or the pauper himself. The order was as follows:
Having carefully perused the judgment and decree appealed from, I see no reason to think that the decree is contrary to law or otherwise erroneous or unjust. I therefore reject this application.
3. The pauper applies here in revision against this order. The applicant contends that the order of the learned District Judge was made without jurisdiction. He contends that once having issued notice, the learned District Judge had no jurisdiction to deal with the application summarily. We have been referred to various authorities for and against the contention of the applicant and in particular to a case decided by a learned Single Judge of this Court, namely, Hubraji v. Balkaran Sing : AIR1938All11 . We do net need to consider these cases. We decide the matter from another standpoint. The proviso to Rule 1 of Order 44 reads as follows:
Provided that the Court shall 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.
4. It is to be noted that this proviso enacts that:
the Court shall reject the application, unless upon a perusal thereof and of the judgment, the Court sees reason to think that the decree is contrary to law...or is otherwise erroneous or unjust.
5. The word 'shall' is mandatory. The Court has no option but to reject the application, unless, having read the application and the 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, it is, in our opinion, functus officio as regards a summary dismissal. The Judge cannot thereafter disregard his previous conclusion and order and dismiss the application summarily. He is bound before he does anything further to hear the parties. In this particular case there is another reason for allowing the application: after notice had been issued, objections had actually been lodged by the opposite party. It would be impossible to say whether the Judge's second opinion upon the matter was not influenced by these objections, without hearing the applicant upon them.
6. In this view of the matter it is clear that the order companied of was passed without jurisdiction. The application in revision must be accepted and the order set aside, with costs. The pauper's application to be allowed to appeal as a pauper will now be heard on the merits.