Horace Owen Compton Beasley, Kt., C.J.
1. This is a Letters Patent Appeal from an order of Burn, J., ordering the appellant to give security for the costs of his appeal. The appellant here has been given leave to appeal in forma pauperis. Burn, J., ordered the appellant to furnish security for Rs. 1000 and it is contended on behalf of the appellant that the order of Burn, J., being based merely upon the poverty of the appellant and nothing-more, is wrong. It is quite true that our learned brother Burn, J., has given no other reason for ordering the appellant to furnish security but it is quite open to us to see whether good reasons exist for such an order being made. It is contended here that security for costs can only be ordered to be given by a pauper appellant in special circumstances: Seshayyangar v. Jainulavadin I.L.R. (1880) Mad. 66, Srinivasa Sastrial v. Subramania Aiyar (1907) 17 M.L.J. 583 and Subbiah Thevar v. Balasubramania Pandia Thalavar 1931 M.W.N. 1157. I agree that ordinarily where an appellant has been allowed to appeal as a pauper there should be reasons other than poverty justifying an order being made upon him to furnish security and the fact that leave has been 'granted to him to appeal in. forma pauperis should of itself be sufficient to show that the judgment appealed against upon a perusal of it appears to be contrary to law or otherwise erroneous or unjust. Unfortunately, following what is stated to be the practice of this High Court, leave to appeal in forma pauperis has been granted frequently on the ground that the appeal raised a substantial question of law or that prima facie the appellant had a good case or an arguable point; and there is one reported decision of this High Court, In re Chennamma , by Venkatasubba Rao and Madhavan Nair, JJ., where it was held that Order 44, Rule 1 of the Civil Procedure Code does not contemplate that, before granting leave to appeal in forma pauperis, the Court should arrive at a definite and final conclusion that the decree complained against is contrary to law or otherwise erroneous or unjust, that it is enough if the applicant shows that he has prima facie a good case and that, if he does so, leave to appeal should be granted. With great respect to the learned Judges who have decided that case, I am unable to see that Order 44, Rule 1 of the Civil Procedure Code contemplates anything else, but what it so definitely states. The proviso is perfectly clear, namely,
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.
2. The order is mandatory and only contemplates a perusal of the application, the judgment and the decree and nothing else; and unless in the opinion of the Court the decree is contrary to law or otherwise erroneous or unjust, the Court is bound to dismiss the application. Order 44, Rule 1, Civil Procedure Code, does not say that the Court shall reject the application unless the appeal raises a substantial question of law or unless the appellant has prima facie a good case. I am unable to agree with the decision in In re Chennamma (1929) Mad. 245 : 58 M.L.J. 195 and in my opinion this Bench should not follow it. It is certainly in conflict with the view of Jenkins, C.J., in Sakubai v. Ganpat I.L.R. (1904) Bom. 451 and also Rajendra Prasad Bose v. Gopal Prasad Bose I.L.R. (1924) Pat. 67 and Maung Tha Din v. Daw Paw A.I.R. 1925 Rang. 249 . Upon perusing the judgment in this case it is very difficult to understand how leave to appeal in forma pauperis was ever granted at all. The learned Judge who granted the application has not given his reasons for doing so; and I may here state that I think that, when such leave is given, the reasons of the Court- for granting such leave should be briefly stated. I am quite unable, after a careful perusal of the judgment under appeal, to say that on the face of it, it is contrary to law or otherwise erroneous or unjust. It certainly raises no substantial question of law and therefore does not even satisfy the test applied in In re Chennatnma I.L.R. (1929) Mad. 245 : 58 M.L.J. 195; nor, in my opinion, does the appellant show even a prima facie good case, and, as I have already stated, no reasons have been given by the Court for allowing the application. What appears to me to have been overlooked in In re Chennamma I.L.R. (1929) Mad. 245 : 58 M.L.J. 195 is the difference between an application for leave to sue as a pauper and an application for leave to appeal as a pauper. In the former case, apart from the question of pauperism, the only test applied is whether there is a cause of action shown; but when the appellate stage is reached, a more severe test has to be applied. The defendant has been successful in the Lower Court and he has been put to great cost in successfully defending the suit and in most cases, he has not been able to recover one anna from the plaintiff towards his costs. Therefore it is that when the pauper litigant comes to the appellate Court for leave to continue the litigation as a pauper, it is incumbent upon him to satisfy the Court that the judgment is erroneous. This does not mean a final decision by the Court, but such a decision as can be given after a perusal of the judgment and the decree. On the question as to security for costs being ordered where leave to appeal has been granted, I think that it is permissible for the Court to peruse the judgment which is being appealed against and to see whether there are circumstances which would justify an order for security for costs. In my opinion, the chance of the appellant's success is such a circumstance. In the present case, taking the view that I do that the appellant has not prima facie a good case, I am satisfied that this is a case for ordering the appellant to furnish security for costs even though he be a pauper. The fact that a person is a pauper is not alone a reason for not ordering him to give security for costs and this is the view taken by Scrutton, L.J., in In re Carroll (1931) 1 K.B.D. 104 . He there states:
On the question of ordering security for costs I desire to say this: the mere fact that a person is in poor circumstances does not justify security being ordered where that person is making his first effort to obtain a decision. A perfectly impecunious person may commence proceedings by the issue of a writ which may involve the defendant in a large sum for costs because the plaintiff, who, I will assume, is unsuccessful, has no funds. As I have sometimes expressed it, the Courts allow an impecunious person to get one bite of the cherry but will not allow him a second bite unless he, as appellant, is able to provide security for the costs of the appeal.
3. Although Burn, J., has given no reason other than the poverty of the appellant for making his order, for the reasons I have already stated, his order must be upheld and this Letters Patent Appeal dismissed with costs.
4. One month for finding the security ordered.
5. I agree. As to Order 44, Rule 1 I cannot see why it should be taken to mean something less than what appears from its plain language.