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Chaki Jakeria Abdulla Vs. Memon Ismail Umar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 74 of 1964
Judge
Reported inAIR1969Guj122
ActsCode of Civil Procedure (CPC), 1908 - Order 33, Rule 5 - Order 44, Rules 1, 1(2), 2 and 2(1)
AppellantChaki Jakeria Abdulla
RespondentMemon Ismail Umar and anr.
Advocates: P.V. Hathi, Adv. for; R.P. Vaidya, Adv.
Cases ReferredAbdul Majid v. Bhaurao
Excerpt:
- - 3. the scheme of order 44, civil procedure code is like this: there is no order on the record of this case passed by the court like the one passed in abdul majid v. in the criminal complaint, dated 21st may, 1958, the plaintiff clearly stated that the building materials were removed from 11th january 1957 to 22nd february 1957. in his deposition before the appellate court (ex......if he appears on that day. and upon a perusal of the application and of the judgment and decree appealed from, shall reject the application, unless it sees reason to think that the decree is contrary to law, or is otherwise erroneous or unjust'marginal note to sub-rule (2) reads thus:--'procedure on application for admission of appeal' rule 2 relates to the inquiry into pauperism.sub-rule (1) therefore applies subject to the provisions relating to suits by paupers contained in order 33, rule 5 of this order gives the grounds on which the application for permission to sue as a pauper can be rejected. rule 6 of order 33 reads as follows:--'where the court sees no reason to reject the application on any of the grounds stated in rule 5, it shall fix a day (of which at least ten.....
Judgment:
ORDER

V.B. Raju, J.

1. A suit allowed to be filed as a suit in forma pauperis was dismissed by the trial Court on the ground of limitation. In appeal also the same view about limitation was taken and therefore the appellate Court held that there is nothing to show that the decree of the trial Court is contrary to law or someusage having the force of law or is otherwise erroneous or unjust. Therefore, the appellate Court refused to grant permission to file the appeal in forma pauperis.

2. In revision it is contended that having admitted the application for permission to file the appeal in forma pauperis and having started the inquiry into pauperism under the proviso to Sub-rule (1) of Rule 2 of Order 44, Civil Procedure Code, it was not open to the appellate Court to hold that the decree is not contrary to law etc.

3. The scheme of Order 44, Civil Procedure Code is like this:

Sub-rule (1) of Rule 1 reads as under:--

'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.

Sub-rule (2) of Rule 1 reads as follows:--

'The appellate court, after fixing a day for hearing the applicant or his pleader and hearing him accordingly if he appears on that day. and upon a perusal of the application and of the judgment and decree appealed from, shall reject the application, unless it sees reason to think that the decree is contrary to law, or is otherwise erroneous or unjust'

Marginal note to Sub-rule (2) reads thus:--

'Procedure on application for admission of appeal' Rule 2 relates to the inquiry into pauperism.

Sub-rule (1) therefore applies subject to the provisions relating to suits by paupers contained in Order 33, Rule 5 of this order gives the grounds on which the application for permission to sue as a pauper can be rejected. Rule 6 of Order 33 reads as follows:--

'Where the Court sees no reason to reject the application on any of the grounds stated in Rule 5, it shall fix a day (of which at least ten days' clear notice shall be given to the opposite party and 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.'

These two rules, namely. Rules 5 and 6 of Order 33, C. P. Code show that inquiry into pauperism can be made only in cases where the Court sees no reason to reject the application on any of the grounds stated in Rule 5. The same is the effect of Sub-rule (1) of Rule 1 and Sub-rule (2) of Rule 1 of Order 44, C. P. Code. This is also the view taken in Mohd-un-Nisa Begum v. Fayaz Ali, AIR 1958 Punj 437. The whole point appears to have not been understood when the learned appellate Judge passed the order 'Admit: Rive notice.'1 The record does not show that the Court applied its mind to the question whether the Court 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. If there is anything on the record of this case that the Court applied its mind, then of course I would have said that the Court had no right to re-open the question. There is no order on the record of this case passed by the Court like the one passed in Abdul Majid v. Bhaurao, AIR 1959 Bom 67, which is as follows:

'There is reason to believe that the trial Court's decree is erroneous. Notice of the pauper application be given to the non-applicants and Collector as similar to Order 33, Rule 6.'

4. Even assuming that the Court was wrong and the procedure adopted by the Court was wrong, as this is a revision, matter, if it appears that the order of the Courts below on the question of limitation is right, this Court will not interfere in revision. In the criminal complaint, dated 21st May, 1958, the plaintiff clearly stated that the building materials were removed from 11th January 1957 to 22nd February 1957. In his deposition before the appellate Court (Ex. 39) dated 20th December, 1961, he has admitted that he gave the date quite correctly in his complaint (Ex. 23). If the building materials were removed before 22nd February 1957. then the suit, which is filed on 29th February 1960, is obviously barred by limitation. In this view of the matter, I do not propose to exercise my revisional jurisdiction, although it may be that the lower Court was not right in deciding the point at a stage subsequent to what was called 'admission of the application.'

5. If the petitioner pays the court-fees due from him to be paid in appeal, all the questions arising for determination will be determined by the appellate Court without in any way being influenced by the remarks in this judgment. One month's time is given to the petitioner to pay the court-fees to be paid by him in appeal.


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