1. A second appeal (Second Appeal No. 194 of 1966) filed by the plaintiff-applicant in forma pauperis was dismissed by Hon'ble the Chief Justice on 26-4-1971 with leave to the appellant to file a Letters Patent Appeal.
2. The plaintiff-applicant now prays for leave to file the Letters Patent Appeal in forma pauperis.
3. It cannot be disputed that the Code of Civil Procedure applies to Letters Patent Appeals. In Sabitri Thakurain v. Savi, 48 Ind App 76 = (AIR 1921 PC 80) the plaintiff-appellant had appealed to the High Court at Calcutta under Clause 15 of the Letters Patent against the rejection by the Court in its original civil jurisdiction of a petition under the Probate and Administration Act. During the pendency of the appeal, the respondent petitioned the High Court for an order that the appellant should give security for costs under sub-rule (1) of Rule 10 of Order XLI of the Code of Civil Procedure. It was ordered that the appellant should, within two months, furnish security to the extent of Rs. 5,000.00 to the satisfaction of the Registrar. No security was furnished and an application filed by the appellant asking for three months' further time to furnish the security was also dismissed. After the period during which security had to be furnished by the appellant had expired, the respondent filed a petition praying that the appeal be dismissed with costs under sub-rule (2) of Rule 10 of Order XLI of the Code of Civil Procedure for the failure of the appellant to furnish the security ordered. At this stage, the appellant for the first time sought to proceed in forma pauperis. The application was refused and by a separate order the appeal was also dismissed. The plaintiff-appellant went up in appeal to the Judicial Committee of the Privy Council by special leave. In the Privy Council it was, inter alia, contended that the orders and rules made under Code of Civil Procedure, 1908 had no application to appeals brought under the Letters Patent. The contention was characterised by the Privy Council to be too wide as, according to it, the real question was whether Rule 10 of Order XLI applied to such appeals. The Privy Council, after an examination of the provisions of the Code, specially Sections 117, 120, 121, 129 and Rule 3 of Order XLIX, observed as follow:
'In conclusion, there Is no reason why there should be any general difference between the procedure of the High Court in matters coming under the Letters Patent and its procedure In other matters, and if this particular matter of security for costs is not dealt with in the orders and rules made under the powers of the Code, when it arises in connection with the jurisdiction created by the Letters Patent, Section 15, no rules of procedure have been formulated with regard to it, though the High Court's power to regulate procedure in Letters Patent Appeals is independent and has been preserved. The Code is framed on the scheme of providing generally for the mode in which the High Court is to exercise its jurisdiction, whatever it may be, while specifically excepting the powers relating to the exercise of original civil jurisdiction to which the Code is not to apply. It confers a general rule-making power saving only what is excepted in the body of the Code. Their Lordships are accordingly of opinion that the High Court at Calcutta rightly conceived itself precluded from entertaining the appellant's application, to be allowed to continue her appeal in forma pauperis, since to grant her application at that stage would in effect have been to keep alive an appeal which they were, by reason of her default in the matter of security, bound to reject. The consequence is that the appeal fails, and so their Lordships will humbly advise His Majesty.'
4. Again, in Venkatasubbarayadu v. Shri Rajah Krishna Yachendrulu Varu Bahadur, ILR 40 Mad 651 = (AIR 1917 Mad 670), Ratanchand v. Danji, AIR 1927 Bom 232, Suba Singh v. Neki Kishen, AIR 1953 Puni 106 and Jwala Prasad v. Jwala Bank Ltd., AIR 1961 All 381 (FB), it has been held that the High Court is competent under Rule 1 of Order XLVII of the Code of Civil Procedure to review a judgment passed in an appeal filed under the Letters Patent.
5. In Ghasnin v. Kaushalya, 1961 MPLJ 733, a Division Bench of this Court has held that Rule 22 of Order XLI of the Code of Civil Procedure applies to Letters Patent Appeals, so that a respondent in such appeals can file a cross-objection. The contrary view taken in Re. Mirza Himmat, (1866) Beny LR Supp Vol. 429 (FB), Kausalia v. Gulab, (1899) ILR 21 All 297 and Brojendra v. Prosanna, 24 Cal WN 1016 = (AIR 1920 Cal 776) cannot be held to be correct, In view of the decision of the Privy Council in 48 Ind App 76 = (AIR 1921 PC 80) (supra). In Sein Dass v. Lakha-jee, AIR 1941 Rang 63, it has been held that in an appeal under the Letters Patent the High Court can act under Rule 33 of Order XLI of the Code of Civil Procedure.
6. It is, however, contended that the language of Rule 1 of Order XLIV of the Code of Civil Procedure does not warrant its application to an appeal which is filed by the leave of the Court.
7. Now, under Rule 1 of Order XLIV of the Code, 'any person entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as a pauper, subject. In all matters, including the presentation of such application, to the provisions relating to suits by paupers, in so far as those provisions are applicable; and on leave being given to an appellant by a single Judge to file an appeal under Clause 10 of the Letters Patent, he becomes a 'person entitled to prefer an appeal' within the meaning of the aforesaid rule. We see no merit in the contention of the learned counsel for the defendants-non-applicants that the expression 'any person entitled to prefer an appeal' refers to persons who are entitled to prefer art appeal as of right and not by the leave of the Court. There is no warrant for so confining the meaning of the expression when, on a plain reading of the rule, no such restriction can reasonably be inferred or implied. When a right of appeal is dependent on leave being granted, a person shall not be entitled to prefer an appeal till the leave is granted; but, once the leave is granted, he shall come into the category of persons who are entitled to prefer an appeal.
8. We are, therefore, of opinion' that the plaintiff-applicant is entitled to claim the benefit of Rule 1 of Order 44 of the Code of Civil Procedure. In view' of the proviso to Rule 2 of Order 44, we see no reason to cause a fresh enquiry into the pauperism of the plaintiff-applicant, when he had been permitted to file a second appeal in this Court in forma pauperis.
9. In the result, the plaintiff-applicant is granted leave to appeal as pauper.