Alfred Henry Lionel Leach, C.J.
1. This petition raises the question whether a person who files an application for an order permitting him to file an appeal in forma pauperis is entitled to be heard in support of the application. Two Judges of this Court, Sadasiva Aiyar, J., and Wadsworth, J., have held that he is not entitled to be heard. On the other hand Patanjali Sastri, J., has held that he is.
2. Order 44, Rule 1, states that a person entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of appeal, may apply to be allowed to appeal as a pauper, subject in all matters, including the presentation of the application, to the provisions relating to suits by paupers, in so far as those provisions are applicable. Then follows this proviso:
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.
There is here a mandatory provision requiring the Court to reject the application unless upon reading it and the judgment and decree appealed from, it considers that it is contrary to law or usage having the force of law or is otherwise erroneous or unjust. In In re : Paramasiva Pillai C.M.P. No. 3601 of 1914, Sadasiva Aiyar, J., refused to hear counsel and dismissed the application after perusing it and the judgment and decree complained of. The learned Judge quoted with approval the observations of Jenkins, C.J., in Sakubai v. Ganpatt Ramkrishna I.L.R. (1904) Bom. 451, where the learned Chief Justice observed that the proviso was a very necessary safeguard introduced by the Legislature for the benefit of litigants who found themselves opposed by paupers and the Court should be careful to see that the proviso is satisfied.
3. The opinion of 'Wadsworth, J., was expressed in Kawthimathi Ammal v. Ganesa Aiyar : AIR1936Mad101 , where he pointed out that the proviso contains no indication that it is either necessary or desirable for the Judge to hear the party before passing orders of rejection. The contrary opinion expressed by Patanjali Sastri, J.', is to be found in the order passed by him in Velayudham Subbayya Nadar v. Kalamsetti Anjaneyalu : (1940)2MLJ570 . There the Judge considered it
difficult to see how such a proceeding can be disposed of except in conformity with the fundamental principle in all judicial procedure that no order should be made without notice to the parties who will be prejudicially affected by the order and without affording them a reasonable opportunity of being heard.
I consider that the opinions expressed by Sadasiva Aiyar, J., and Wadsworth, J., correctly state the law. At the same time I share the satisfaction of Patanjali Sastri, J., that the practice of the Courts in this Presidency in dealing with applications of this kind has been to hear the applicant. While there is no necessity in law to do so, it will tend to maintain confidence if Judges do give applicants an opportunity of being heard, being careful, of course, not to allow them to travel beyond the documents referred to in the proviso to Rule 1 of Order 44.
4. The petition will be dismissed, but as the respondent has not appeared, there will be no order as to costs.
5. I agree.