D.S. Dave, J.
1. This is an application in revision against the order of the District Judge, Jodhpur, dated 27-7-1957, and arises in the following circumstances:
2. The petitioner wanted to file an appeal in the court of the learned District Judge, Jodhpur, against the judgment and decree passed against him by the Civil Judge, Jodhpur, on 17-12-1956, in a money suit. The petitioner presented an application for leave to file an appeal in forma pauperis. The appellate court ordered a notice to be issued to the respondents.
When that application came before the court on 27-7-57, it was submitted by the non-applicants that since the decree was not contrary to law or some usage having the force of law or otherwise erroneous or unjust, it should be dismissed under the proviso to Order 44, R, 1, C. P. C. This argument found favour with the learned District Judge and he dismissed the petitioner's application for permission to appeal in forma pauperis. It is against this order that the present revision application has been filed.
3. Learned counsel for the applicant has urged that the appellate court could reject hisapplication under the proviso to Order 44, Rule 1 at the time when it was presented, but once the court had issued notice to the opposite party, there was no jurisdiction left in the court to pass any order under the proviso.
He means to say that once the notice was issued to the opposite party, the court lost its jurisdiction to dismiss the application under the proviso and thereafter it could only make an enquiry into the pauperism of the petitioner. In support of his argument learned counsel has referred to Sin. Panchu Bala Dasi v. Nikhil Ranjan Pal AIR 1956 Cal 530 (A), in that case it was held that
'when a court before which an application to file an appeal in forma pauperis is made does not reject the application in view of the proviso to that rule, but issues notice on the opposite party to show cause why the application to prosecute the appeal as pauper should not be allowed, it is not open to the court at a later stage to reject the application on the ground that under the proviso it is bound to reject it.' This observation no doubt supports the contention of the petitioner's learned counsel, but we respectfully disagree with the view taken therein. The learned Judges who decided the above case have observed that 'the matter which was raised before them did not come up for consideration before that court ever before.'
The learned Judges then relied upon a Single Bench authority of the Allahabad High Court in Mst. Hubraji v. Balkaran Singh AIR 1933 All 11 (B). It appears that the attention of the learned Judges was not invited to the fact that the view taken in the above case was not followed by a Division Bench of the same High Court in Secy, of State v. Mt. Son Kali, AIR 1934, All 424 (C). In that case it was held that
'on receipt of an application to appeal as! a pauper the court has first to consider whether prima facie there is any ground for the rejection of the application. If the application is rejected, the whole matter ends there. If it is not rejected, a notice is to go to the Government Pleader and the respondent and when they appear, the court has to decide on hearing them whether the applicant is in a position to pay the court-fee and further whether the decree is one which is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust.'
A similar matter again came before a Full Bench of the same High Court in Mt. Powdhari v. Mt. Ram Sanwari, AIR 1934 All 1004 (D). In that case it was again reiterated following the view taken in the preceding case as follows:
'We do not mean to lay down that the court is bound to issue notice to the opposite party; nor do we lay down that once a 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 C. 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. Ouranswer to the question referred to us therefore is that it is 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.'
4. It would thus appear that the view taken by the Full Bench of the Allahabad High Court in the above case is contrary to the view which was earlier taken by a single Judge of that Court in AIR 1933 All 11 (B) and these later cases do not seem to have been brought to the notice of the learned Judges deciding the case AIR 1956 Cal 530 (A) because there is no reference to these cases in that judgment. Similarly, the learned Judges in AIR 1956 Cal 530 (A) relied upon the view taken earlier by the learned Judges of the Patna High Court in Mt. Buchan Dai v. Jugal Kishore, AIR 1924 Pat 791 (1) (E), Raghunath Prasad Sahu v. Mt. Rampiari Kuer AIR 1928 Pat 118 (F) and Mt. Bibi Sogra v. Radha Kishun AIR 1929 Pat 27 (G), though those cases were overruled by a Pull Bench of the Patna High Court in Tilak Mahto v. Akhil Kishore AIR 1931 Pat 183 (H).
5. It may be further pointed out that the learned Judges of the Calcutta High Court did not follow the contrary view taken by the learned Judges of the Lahore High Court in Benarsi Das v. Munshi Ram AIR 1934 Lah 72 (I). This case was specifically referred to but it was not followed. It may be mentioned here that the Lahore High Court has subsequently followed the same view in AIR 1934 Lah 72 (I) where it was observed as follows:
'Any order which has been passed behind the back of the party should not operate to the prejudice of that party. Where therefore the order issuing notices is passed in the absence of the respondents, they cannot be precluded as a result of the order from arguing before the court that the decree sought to be appealed against was contrary to law or to some usage having the force of law or was otherwise erroneous or unjust.'
The same view has been taken by the Nagpur High Court in Bhairanlal Harakchand Oswal v. Ambikaprasad Ram Ratan AIR 1937 Nag 150 (J).
6. A Full Bench of the Oudh Chief Court also expressed the same view in Habshi Mian Ilmas Khawaja Sara v. Mehdi Hasan Khan AIR 1937 Oudh 222 (K). In that case it was observed that
'when notice has been issued upon an application under Order 44 Rule 1 to the opposite party! and the Government Advocate, it is still open1 to the court under the proviso to that Rule to reject the application, unless upon a perusal thereof and of the judgment and decree appeal ed 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'
The Rangoon High Court took the same view in Maung Nyein v. Burma Electric Supply Co. Ltd., Mandalay AIR 1939 Rang 25 (L).
7. The only authority thus left in support of the view taken by the learned Judges of the Calcutta high Court is Nagarattamma v. Nagayya AIR 1933 Mad 658 (M). It is a decision of a Single Bench and it proceeds on the view taken in AIR 1.928 Pat 118 (F) and AIR 1929 Pat 27 (G) which have been overruled in AIR 1931 Pat 183 (H) as pointed out above. There is one more decision of the Madras High Court holding the same view, viz., S. K. M. R. M. Soma-sundaram Chettiar v. Rm. Ar. Rr, Rm. Arunachalam Chettiar AIR 1932 Mad 523 (N). It appears that the view taken by the Lahore High Court and the Full Bench case of the Patna High Court, referred above, were brought to the notice of the learned Judges, but they did not follow it on the ground that there was a long standing practice of the Madras High Court not to hear the respondent at that stage and it was quite in consonance with the provision of the Civil Procedure Code.
8. It would thus appear that Calcutta and Madras High Courts are of one view and according to this view if the appellate court does not reject the application for leave to appeal in forma pauperis at once and if it issues notice to the opposite party to show cause why the application should not be allowed, then it is not open to the court to reject the application on the grounds mentioned in the proviso to Order 44 Rule 1. On the other hand, Allahabad, Oudh, Patna, Nagpur and Rangoon High Courts are of the view that even after notice is issued, it is open to the court to reject the application under that proviso. We have given our earnest consideration to the arguments which have been given in favour of the different views and we feel inclined to follow the majority view, not because the majority of opinion is on that side but because that view, if we say so with respect is more sound and conducive to the ends of justice.
9. One of the strongest reasons which has been given in support of the contrary view i.e. the view taken by the Calcutta and Madras High Courts is that the proviso limits the court to the perusal of the application and the judgment and decree in deciding the question whether the decree is contrary to law or some usage having the force of law or is otherwise erroneous or unjust and that it does not require the court to go through the record nor does it require that the court should hear the opposite party.
It is true that the ordinary scheme of Order 44 Rule 1 C. P. C. is that when a person approaches the court with an application to permit him to file an appeal in forma pauperis, the court should, before issuing a notice to the opposite party, peruse the judgment, decree and the application and then make up its mind whether the decree is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust. The Rule does not seem to contemplate that the court should issue a notice to the opposite party as a matter of course without looking into the application, judgment and decree.
If, after the perusal of the application, judgment and decree, the court comes to the conclusion that the decree is not contrary to law or to some usage having the force of law or it is not otherwise erroneous or unjust, then it is the duty of the court to reject the application for leave to appeal, at once. Ordinarily, therefore, the court must make up its mind whether the application is fit to be rejected at once. In case where the application is thus rejected there would be an end of the matter. If the application is not so rejected, then a notice should go to the opposite party.
10. The question which however arises is whether after the notice has been issued the court loses its jurisdiction to reconsider the matter according to the proviso or it is still open to it to consider over the matter. We think that in the majority of cases the court should be able to make up its mind before issuing the notice to the other party whether it should reject the application but there can be some cases in which the court may not be able to make up its mind and it may leave the matter to be decided after hearing the opposite party or, there may be some cases in which though the court thinks that the judgment or decree is prima facie contrary to law or erroneous or unjust, the opposite party is able to satisfy the court that its first impression is not correct. We see no reason why in such cases the court should not be able to pass an order under the proviso after hearing the other party. It has been urged that this is not the scheme of the Code of Civil Procedure. In reply to this contention, it may be pointed out that Order 44 Rule 1 clearly provides that the application for leave to appeal in forma pauperis is
'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'.
Now, Order 33 Rule 7(2) provides that when the opposite party appears in response to the notice for receiving evidence, the court shall not only hear arguments which the parties may desire to offer on the question whether the applicant is or is not a pauper, but it has also got to hear arguments whether the applicant is or is not subject to any of the prohibitions specified in Rule 5. In other words, the opposite party has a right to be heard to satisfy the court that the application of a pauper is fit to be rejected under Order 33 Rule 5. The grounds for rejection of an application for leave to appeal in forma pauperis which are embodied in the proviso to Order 44 Rule 1 could not find place in Order 33, since it relates to application for filing original suits in forma pauperis, but when Order 44 Rule 1 provides that 'the application will be subject, all matters including the presentation of application, to the provisions relating to suits by paupers,' it becomes quite clear that the opposite party has a right not only to challange the correctness of the applicant's assertion about his pauperism, but he can raise other objections also which he could raise under Order 33 Rule 7, if the application was made to file a suit as a pauper. This makes it quite clear that it is not the scheme of the Code of Civil Procedure that the opposite party appearing to contest the application underOrder 44 Rule 1, has to confine his evidence or arguments only about the pauperism of the applicant and he is debarred from raising any objection whatsoever.
11. What is meant to say is that it does not appear to be the scheme of Order 44 Rule 1 that the opposite party has no right to show that the applicant's petition for leave to appeal in forma pauperis is fit to be rejected under the proviso. It is true that the Rule does not seem to contemplate that the opposite party should be allowed to advance elaborate arguments at the stage of allowing the application for leave to appeal, but at the same time the Rule does not prohibit the court from hearing the opposite party to help it in making up its mind whether the error pointed out by the applicant is in fact not an error and that the decree is not contrary to law or some usage having the force of law; nor is it erroneous or unjust.
12. Another argument given against the majority view is that if the court proceeds to reject the application after giving notice to the opposite party, the applicant would be put to a lot of harassment and that He would also be put to the trouble and expense of producing witnesses to prove his pauperism only to find that all that evidence is of no use since his application is dismissed on the preliminary ground arising out of the applicability of the proviso.
In our view, the argument relating to the Inconvenience of the parties is of little weight in determining the question about the jurisdiction of the court. Moreover, the harassment to the applicant can be avoided easily, only if the court proceeds in a proper manner. If the opposite party wants to raise any objection on the basis of the proviso it should be heard first. The court should record the evidence relating to the pauperism of the applicant only if it does not proceed to reject the application under the proviso. In case the application is rejected under the proviso after hearing both the parties, there would be no need of recording evidence about the applicant's pauperism. If the court proceeds in this manner, there can be no harassment to the applicant in producing his evidence.
13. Another argument given in support of the contrary view is that the notice which is given under Order 44 to the opposite party is only for showing cause against pauperism and therefore the opposite party cannot be heard about the proviso. It may be pointed out that Order 44 itself does not refer to a notice of a particular kind. It is Appendix G Form No. 11 which prescribes a notice to be given to the opposite party to show cause why the applicant should not be allowed to appeal as a pauper'. It has been urged that since the notice is only 'to show cause against the applicant being allowed to appeal as a pauper, the opposite party has only to show whether the applicant is a pauper or not, and no more. In our opinion, this argument is also not tenable.
If the decree against which the applicant wants to file an appeal is not contrary to law or to some usage having the force of law or is otherwise not erroneous or unjust, the court can-not allow the applicant to file an appeal. We see no reason why the opposite party cannot urge this as one of the grounds for not allowing the applicant to file an appeal as a pauper when he is asked to show cause why the applicant should not be allowed to appeal as a pauper.
14. Lastly, learned counsel for the petitioner has urged that Order 44 Rule 1 has been amended and since the proviso does not exist any longer, the majority view expressed above is not tenable. In our opinion, this argument is not correct. It is true that Order 44 Rule 1, as amended by Act No. 66 of 1956, has undergone some change. Rule 1 is now divided into two parts and the old proviso has been numbered as Sub-rule (2). According to this change the appellate court is now required to fix a date for hearing the applicant or his pleader and it further requires that after hearing the applicant or has pleader if they appear on the day fixed, and after perusing the application and the judgment and decree, it should reject the application unless 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.
The only change thus made is that a day for hearing should be fixed and the applicant or his pleader should be heard before the application is rejected. The remaining provision, however, remains unchanged. Sub-rule (2) does not prohibit the court from issuing a notice to the opposite party and hearing the same, if it thinks proper, on the question whether the judgment and decree appealed from is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust.
15. To put the matter briefly the position of law, in our opinion, is as follows:
(1) When an application for leave to appeal as forma pauperis is presented, the appellate court should fix a day for hearing, and then, after giving a hearing to the applicant or his pleader if he appears on that day, the court should peruse the application and the judgment and decree appealed from. Ordinarily, it must make up its mind at once whether the decree is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust. If it finds that the decree or judgment does not contain any defect of this type, it must reject the application. In case it thinks that there is some such error, then it should give notice to the opposite party.
(2) The mere fact, however, that the application is not rejected at once and a notice is issued to the opposite party would not mean that the court would be precluded from rejecting the application if the opposite party is able to satisfy the court that the applicant's contention was wrong and that the decree is really not contrary to law or to some usage having the force of law or that it is not otherwise erroneous or unjust.
(3) The court should proceed to enquire into the pauperism of the applicant only after it has definitely come to the conclusion that the application is not fit to be rejected on the above grounds.
16. In the present case, the appellate courtdid not express any opinion before it issued notice to the opposite party. Under the circumstances, it cannot be said that it has exercised jurisdiction which was not vested in it or that it has committed any material irregularity in exercise of its jurisdiction.
17. We, therefore, do not see any reasonto allow this application and it is hereby dismissed.