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Shib Krishna Das Vs. Panchanan Ganguly and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberFull Bench Reference No. 3 of 1956 in Civil Rule No. 3158 F of 1955
Judge
Reported inAIR1961Cal346,65CWN576
ActsCode of Civil Procedure (CPC) , 1908 - Order 33, Rule 5 - Order 44, Rule 1 and 1(2); ;Code of Civil Procedure (CPC) (Amendment) Act, 1956
AppellantShib Krishna Das
RespondentPanchanan Ganguly and ors.
Appellant AdvocateKanaidhan Dutta and ;Nagendra Nath Bose, Advs.
Respondent AdvocateBhabesh Chandra Mitter, Adv.
Cases ReferredBenarsidas v. Munshiram
Excerpt:
- lahiri, c.j. 1. this reference raises the question of the true interpretation of order 44, rule 1, civil procedure code, as it stood prior to its amendment by act 66 of 1959 of the indian parliament. the point in controversy between the parties is whether in showing cause in pursuance of a notice issued under order 44, rule 1, the respondent is entitled not only to challenge the pauperism of the applicant for leave to appeal as a pauper, but also to show under the proviso to rule 1 that the application is liable to be dismissed on the ground that the decree is neither contrary to law not to any usage having force of law nor is otherwise erroneous or unjust. 2. the facts of the case which are not in dispute are these; on march 22, 1955, the petitioner filed an application for leave to.....
Judgment:

Lahiri, C.J.

1. This Reference raises the question of the true interpretation of Order 44, Rule 1, Civil Procedure Code, as it stood prior to its amendment by Act 66 of 1959 of the Indian Parliament. The point in controversy between the parties is whether in showing cause in pursuance of a notice issued under Order 44, Rule 1, the Respondent is entitled not only to challenge the pauperism of the applicant for leave to appeal as a pauper, but also to show under the proviso to Rule 1 that the application is liable to be dismissed on the ground that the decree is neither contrary to law not to any usage having force of law nor is otherwise erroneous or unjust.

2. The facts of the case which are not in dispute are these; On March 22, 1955, the petitioner filed an application for leave to appeal as a pauper. On March 29, 1955, the Division Bench before which the petition was presented passed the following order:

'Let the application be sent down to the court below for enquiry into the alleged pauperism of the petitioner after giving notice to, the other side as also to the Collector.'

In pursuance of the aforesaid order the petition was sent down to the trial court under Order 44, Rule 2, Civil Procedure Code; notices were served upon the respondents as also upon the Collector. The Collector filed a report stating that the Government would not oppose the application. One of the respondents, however, filed an objection but did not enter appearance on the date of hearing. On behalf of the Collector it was submitted that on local enquiry it was found that the petitioner had no sufficient means to pay court-fees upon the memorandum of appeal. Upon the Collector's report and upon the evidence adduced by the petitioner the trial court submitted a report dated August 22, 1955, that the petitioner was not possessed of sufficient means to enable him to pay court-fees required for the memorandum of appeal. When that report was placed before the Division Bench, It issued a Rule upon the respondent in the following terms :

'Let a Rule issue calling upon the opposite parties to show cause why the petitioner should not be permitted to file and prosecute the appeal in this Court as a pauper or such further or other order or orders made as to this Court may seem fit and proper.'

This Rule was issued on September 2, 1955. When this Rule came up for hearing before another Division Bench on 31-8-1956, a question was raised as to whether at that stage the Court had jurisdictionto go into the question whether the petition satisfied the requirements of the proviso to Order 44, Rule 1. On this point the Division Bench was confronted with two conflicting Bench decisions of this Court in the cases of Arunendra Nath v. Sanat Kumar 59 Cal WN 367 (decided by Mukherjee and Renupada Mukherjee JJ.) and Panchu Bala v. Nikhil Ranjan, : AIR1956Cal530 (Das Gupta and Guha JJ.). In the former case it was held that the Court had jurisdiction even at that stage to satisfy itself whether the application for leave to appeal as a pauper complied with the requirements of the proviso to Order 44, Rule 1, whereas in the latter case it was held that the Court had no such jurisdiction. It is to be noticed that the earlier decision in Arunendra Nath's case, 58 Cal WN 367 was not brought to the notice of the Bench which decided Panchubala's case, 60 Cal WN 835 : (AIR 1950 Cal 530). As a result of this conflict between two Bench decisions, the following questions have been referred to the Full Bench.

(1) Whether, when a Court, before which an application to file an appeal in forma pauperis under Order 44, Rule 1 is made, does not reject the application in view of the proviso to that Rule but issues notice on the opposite parties to show cause why the application to prosecute the appeal in forma pauperis should not be allowed, it is open to the Court at a later stage to reject the application on the ground that, under the proviso, the application should be rejected,

(2) Which of the two Bench decisions of the Court, namely, the one in the case reported in 58 Cal WN 367 and the other in the case reported in : AIR1956Cal530 is correct?

3. There is such a conflict of judicial opinion on the point not only amongst the different High Courts of India, but also among the different decisions of the same High Court that it Is better in the first instance to examine the provisions of the Code unfettered by any authority. The main provision of Order 44, Rule 1 confers upon a litigant who is unable to pay the fee required for the memorandum of appeal to file an application for permission to be allowed to appeal as a pauper

'subject in all matters ..... to the provisions relating to suits by paupers in so far as they are applicable.'

The proviso enjoins upon the Court the duty of rejecting 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.' There can be little doubt that the language of the main body of Order 44, Rule 1 incorporates the provisions of Order 33, Rules 5 and 7 in so far as they are applicable, that is to say, only those provisions of Order 33, Rules 5 and 7 will apply to a proceeding under Order 44, Rule 1, which can be made applicable to it, Order 33, Rule 5 empowers the Court to reject an application to sue as a pauper without issuing any notice upon the defendant under the circumstances enumerated in the five clauses of that Rule and if the Court does not reject an application under Order 33, Rule 5, it can issue a notice upon the defendant under Rule 6. Under Order 33, Rule 7 the Court is expressly authorised by Sub-rule 2 to reconsider the question in the presence of and afterhearing the argument advanced by the defendant whether the application is not liable to be dismissed on any of the grounds enumerated in Rule 5.

4. The combined effect of Order 33, Rules 5 and 7, is that a person who intends to file a suit as a pauper must satisfy the Court about the non-existence of the circumstances enumerated in the five clauses of Rule 5 twice; first, in the absence of the defendant under Rule 5 and secondly, in the presence of the defendant under Rule 7. If any of the circumstances mentioned in Rule 5 are present, the Court may dismiss the application for permission to sue as a pauper in limine under Rule 5 or after hearing the defendant under Rule 7. One of the grounds upon which the Court may reject the application for permission to sue as a pauper is enumerated in Clause (d) of Rule 5 and that is 'where his (applicant's) allegations do not show a cause of action.' The question whether the applicant's allegations do not show a cause of action has therefore to be considered by the Court ex parte under Rule 5 and in the presence of the defendant under Rule 7. If these provisions relating to the existence of a cause of action under Order 33 apply to the case of an appeal under Order 44, Rule 1, there can be no doubt that the respondent is entitled in showing cause in pursuance of a notice under Order 44, Rule 1 to satisfy the Court that the decree sought to be appealed from is not contrary to law or to a usage having the force of law or is not otherwise unjust Or erroneous; and the first question referred to the Full Bench must be answered in the affirmative and the case of Arunendra Nath Chatterjee 58 Cal WN 367 must be held to have been rightly decided. But it seems to me that the proviso to Order 44, Rule 1 is a substitute for Clause (d) of Order 33, Rule 5. In the case of an appeal the question before the Court is not whether the applicant's allegations disclose a cause of action but whether the decree sought to be appealed from is erroneous on the grounds enumerated in the proviso. In the case of an appeal the cause of action alleged by the applicant in his plaint has merged in the decree and the appellate Court is not concerned with the question of the existence of a cause of action. The main body of Order 44, Rule 1 does not attract all the provisions of Order 33, but only those parts which are applicable to appeals. In other words, the provisions of Order 33 apply to an appeal mutatis mutandis. For this reason, I am inclined to hold that all the provisions of Order 33, Rule 5 with the exception of Clause (d) apply to an appeal under Order 44, Rule 1.

5. The same conclusion can be reached if we consider the proviso to Order 44, Rule 1 from a practical point of view. Suppose the satisfaction of the Court under Order 44, Rule 1 is a tentative satisfaction which requires to be confirmed and converted into a firm conclusion in the presence of the respondent. In that case the respondent will undoubtedly have an opportunity of showing that the decree intended to be appealed from is not contrary to law or to a usage having the force of law or is not otherwise unjust or erroneous. The Court after hearing both sides comes to a firm conclusion that the decree is contrary to law. What then remains for the final hearing of the appeal? Can it be said that the Court is entitled to set aside the decree at the preliminary stage without waiting for the final hearing of the appeal? The answer must I think be in the negative. Suppose again the Court after hearing the respondent comes to the conclusion that the decree is not contrary to law or to a usage having the force of law nor is it otherwise erroneous or unjust and it dismisses the application under Order 44, Rule 1. The applicant, however, will still have a right to have the whole question reagitated if he abandons his right under Order 44, Rule 1 and chooses to pay the court-fee required for the memorandum of appeal. In either case, therefore, the decision of the Court at the preliminary stage cannot be treated as final and the question of the decree being contrary to law or to a usage having the force of law or being otherwise erroneous or unjust must be determined at the final hearing. No useful purpose will be served, by requiring the Court at the preliminary stage to arrive at a firm conclusion in the presence of the respondent about the decree being contrary to law or to a usage having the force of law or being otherwise erroneous or unjust. I, accordingly, hold that the satisfaction of the Court under the proviso is not required to be confirmed or to be converted into a firm conclusion in the presence of the respondent at the preliminary stage. To my mind, it is sufficient compliance with the requirements of the proviso if the Court is tentatively satisfied about the decree being contrary to law or to a usage having the force of law or being otherwise erroneous or unjust. The respondent will have the opportunity and the right to challenge that tentative satisfaction at the final hearing of the appeal. The language used by the Legislature in the proviso also supports the conclusion that the satisfaction contemplated by it is tentative satisfaction; because the proviso enacts that the Court shall reject the application unless upon a perusal of certain documents it 'sees reason to think' that the decree is contrary to law or to a usage having the force of law or is otherwise erroneous or unjust. In my opinion, the words it 'sees reason to think' connote prima facie or tentative satisfaction, To my mind the hearing of an application under the proviso to Order 44, Rule 1 resembles hearing of an appeal under Order 41, Rule 11, Just as Order 41, Rule 11 does not require a notice to be served upon the respondent to show cause why the appeal should not be admitted, so also the proviso to Order 44, Rule 1 does not require a notice to be issued upon the respondent to show cause why it should not be held that the decree intended to be appealed from is contrary to law or to a usage having the force of law or is otherwise erroneous or unjust. Just as the tentative satisfaction of the Court under Order 41. Rule 11 can be challenged by the respondent at the final bearing of the appeal, so also the tentative satisfaction of the Court under the proviso to Order 44, Rule 1 can be challenged by the respondent at the final hearing of the appeal. There can, therefore, be no question of taking away of the respondent's right without hearing him.

6. I shall now consider whether the Form of notice issued under Order 44, Rule 1 lends support to the contention that in showing cause in pursuance of the notice the respondent has a right to show that the decree is not contrary to law or to a usage having the force of law and is not otherwise erroneous or unjust. The Form is Form No. 11 of Schedule I Appendix G of the Civil Procedure Code, prescribed in pursuance of Order 48, Rule 3 of the Civil Procedure Code. The material portion of the Form is in the following terms:

'Notice is hereby given to you that if you desire to show cause why the applicant should not be allowed to appeal as a pauper an opportunity will be given to you for doing so.....'

True, the language of the Form is wide enough to allow the respondent an opportunity of showing cause not only against the pauperism of the applicant, but also to show that the decree is not contrary to law or to a usage having the force of law or is not otherwise erroneous or unjust. But the question Ss at what stage is the notice to be issued? Is it to be issued as soon as an application under Order 44, Rule 1 is filed by the pauper or is it to be issued after the Court has applied its mind to the proviso and come to a tentative conclusion that the decree is contrary to law or to a usage having the force of law or is otherwise erroneous or unjust? Looking at the language of Order 44, Rule 1 together with the proviso, I have no doubt in my mind that as soon as an application for leave to sue as a pauper is filed, the first duty of the Court is to consider whether the decree is contrary to law or to a usage having the force of law or is otherwise erroneous or unjust and it is only after the Court has considered that question that the notice in Form No. 11 of Schedule 1, Appendix G is to be issued. Viewed in this light the right of the respondent in showing cause in pursuance of the notice is confined to clauses a, b, c and e of Order 33, Rule 5 excluding Clause (d), because I have already held that the proviso to Order 44, Rule 1 is a substitute for Clause (d) of Order 33, Rule 5. I accordingly hold on a plain construction of Order 44, Rule 1 and the Form of the notice, untrammelled by authorities, that in showing cause in pursuance of a notice wider Order 44, Rule 1 the respondent has no right to show that the decree intended to be appealed from is not contrary to law or to a usage having the force of law and is not otherwise erroneous or unjust.

7. On behalf of the respondents it has been contended that they obtained a valuable right against the petitioner in the court below and that right cannot be destroyed without hearing them and that an ex parte order admitting the application cannot take away the vested right to show that the order should not have been made. Reliance was placed for this proposition upon the decision of the Privy Council in the case of Krishnaswamy v. Ramaswamy, 45 Ind App 25: ILR 41 Mad 412: (AIR 1917 PC 179). I fail to see how by merely admitting an application under Order 44, Rule 1 and by allowing an applicant to appeal as a pauper any right of the respondent can be said to be taken away. The respondents will certainly have a right at the final hearing of the appeal to show that the decree appealed from by the pauper is correct and that it is not contrary to law' or to a usage having the force of law. I see no point in allowing the respondents two opportunities of proving the same thing twice over: first, at the preliminary stage and again at the final hearing. I have already said that no useful purpose will be served by allowing the respondent an opportunity of showing that the decision sought to be appealed from is not contrary to law or to a usage having the force of law or is not otherwise erroneous or unjust at the preliminary stage, because any conclusion arrived at by the Court at that stage will not be final and will not bind the parties at the final hearing. The decision of the Privy Council in Krishnaswamy's case, 45 Ind App 25: (AIR 1917 PC 179) has no application to the question of the interpretation of the proviso to Order 44 Rule 1. That was a case where the Privy Council pointed out that if time for filing the appeal is extended under Section 5 of the Indian Limitation Act, the question whether there is a sufficient cause within the meaning of Section 5 must be determined in the presence of the respondent before registering the appeal and should not be left for determination at the final hearing. It is wellknown that the question whether there is sufficient cause for extension of time under Section 5 depends upon certain allegations of fact, which the petitioner under Section 5 alleges for the first time in the Court of appeal. The Privy Council pointed out that those allegations of fact will have to be investigated in the presence of the respondent before extending the time under Section 5. Applying the principle of the decision of the Privy Council to an application under Order 44, Rule 1, the only consequence that follows is that the respondent is entitled to challenge the allegations of fact under Clauses (a), (b), (c) and (e) of Order 33, Rule 5 and nothing more. The Privy Council decision relied upon by the respondent does not authorise the conclusion that the respondent is to be heard before admitting an appeal under Order 41, Rule 11, Civil Procedure Code. No litigant has, in my opinion, any vested right to prevent his adversary from preferring an appeal in the usual way by paying court-fees and no litigant has also any vested right to prevent his adversary from appealing as a pauper if his adversary satisfies the requirements of Clauses (a), (b), (c) and (e) of Order 33, Rule 5. All that the respondent may claim in the latter case is to show that the applicant under Order 44, Rule 1 does not fulfil the conditions laid down in the four clauses of Order 33. Rule 5 as enumerated above. It has also been contended by the respondent that when an application under Order 44, Rule 1 is presented in Court, the Court must record the reasons upon which leave has been granted. It is argued that this is intended as a safeguard against the proviso to Order 44, Rule 1 being overlooked. Reliance has been placed for this proposition upon certain observations of Sir Lawrence Jenkim in the case of Sakhubai v. Ganapat Ramkrishna, ILR 28 Bom 451. Although the decision in Sakhubai's case, TLR 28 Bom 451, is a decision of the Bombay High Court by Jenkins, C. J. and Batty, J., it has been referred to in some of the reported decisions as a decision of the Privy Council; see for example Tilak Mahto v. Akhil Kishore, ILR 10 Pat 606 at p, 617 : (AIR 1931 Pat 183 at p. 186); but that is probably a mistake of the Editor of Indian Law Reports. However, that may be the observations of Sir Lawrence Jenldns in Saktmbai's case, ILR 18 Bom 451, have no bearing on the point whether the respondent should have an opportunity of proving under the proviso to Order 44, Rule 1, that the decree is not contrary to law or to a usage having the force of law or is not otherwise erroneous or unjust. In that case Sir Lawrence Jenkins proceeded on the footing that the proviso to Order 44, Rule 1 was 'apt to be overlooked' and it would provide a safeguard against that possibility if the Bench admitting a pauper appeal were to express on record briefly reasons for granting leave. It is possible to argue against this view that there is no reason to think that a Judge or Judges dealing an application under Order 44, Rule 1 would disregard the mandatory provisions of the proviso to Order 44, Rule 1. If the view expressed in Sakhubai's case, ILR 28 Bom 451, were to be accepted, it might also be held that a Judge or Judges should briefly record their reasons for admitting an appeal under Order 41, Rule 11 of the Civil Procedure Code or at the time of issuing a Rule upon the respondent on an application under Section 115, Civil Procedure Code. Be that as it may, it is not necessary for us to pursue the point any further since the point does not require consideration in this reference.

8. I shall now proceed to discuss the authorities which have a direct bearing on the point referred to the Full Bench. At the outset I must state that I am not unmindful of the fact that the view which I have taken about the scope and interpretation of Order 44, Rule 1 and its proviso is contrary to an overwhelming array of authorities of the different High Courts of our counhy. Before the amendment of Order 44, Rule 1 by the Amending Act 86 of 1956, there were three views as to the scope of the proviso.

(a) In considering the proviso the Court is not bound to hear either the petitioner or the respondent. See the case of Subba Rao v. Tata Reddi, AIR 1942 Mad 478 (1).

(b) The Court must hear both the petitioner and the respondent. See the cases of ILR 10 Pat 606 : (AIR 1931 Pat 183) (FB), Mt. Powdhari v. Mt. Ram Sanwari : AIR1934All1004 , Mohammad-un-Nisa v. Faiyaz Ali, , Narsingdas v. Mulraj, , Habshi Mian v. Mehdi Huron , lastly 58 Cal WN 367.

(c) In considering an application under Order 44, Rule 1 if the Court issues notice on the respondent after satisfying itself under the proviso to that Rule that the decree is prima facie contrary to law or to a usage having the force of law or is otherwise erroneous or unjust, it has no jurisdiction to reject the application at a later stage after hearing the respondent. See : AIR1956Cal530 , Abdul Majid v. Bhaurao Atmaram, : AIR1959Bom67 and several earlier decisions of the Patna High Court which have been overruled by the Full Bench decision in Tilak Mahatan's case, ILR 10 Pat 606 : (AIR 1931 Pat 183).

It is unnecessary for me to discuss in detail the different reasons given by the different High Courts and also by the two conflicting decisions of this Court for arriving at opposite conclusions because I have already dealt with those reasons in dealing with the provisions of Order 44, Rule 1, without the aid of any of these authorities. All that is necessary for me is to point out that in Powdhari's case : AIR1934All1004 , Sulaiman C. J. in delivering the judgment of the Full Bench made the following observations :

'We do not of course mean to lay down that the Court is bound to issue notice to the opposite party (in an application under Order 44, Rule 1) nor do we lay down that once 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. Code. 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.'

With all the respect that is due to an eminent Judge like Sulaiman, C. J., I venture to think that these observations lead us nowhere. If the Court has the power to grant leave to an applicant under Order 44, Rule 1 even without issuing any notice to the respondent, it is difficult to see how the Court can revoke that leave under Section 151, Civil Procedure Code. It seems to me that the correct view is to issue a notice in all cases upon the respondent in Form. No. II of Appendix G of Schedule 1 of Civil Procedure Code, if the application is not dismissed under the proviso to Order 44, Rule 1 but to restrict the right of the respondent to challenge the pauperism of the applicant on the grounds enumerated in Clauses (a), (b), (c) and (e) of Order 33, Rule 5. With regard to the decision of the Punjab High Court in the case of Mahammad-un-Nisa Begum, , it is interesting to note that the learned Judges (Fal-shaw and Meher Singh, JJ.) were of the opinion that if the question were res integra and were not the subject matter of decisions of the various High Courts including a, decision of the Lahore High, Court in Benarsidas v. Munshiram, ILR 15 Lah 132 : AIR 1934 Lah 72, their Lordships might be inclined to take the view that the decision of this Court in the case of Panchubala Dassi, : AIR1956Cal530 , was correct. But in view of the weight of authority in support of the contrary view, their Lordships felt constrained to hold that after the respondent has appeared in answer to a notice under Order 44, Rule 1, it was open to him to oppose the application on the ground that the decree sought to be appealed from was not prima facie contrary to law or otherwise erroneous or unjust. The decision of the Rajasthan High Court in the case of , expressly dissents from. the view taken by this Court in the case of Panchubak Dassi, : AIR1956Cal530 , but in doing so the Rajasthan High Court merely follows the majority of decisions given by the other High Courts of India on the point and adds nothing to the reasons given by those other High Courts. It is true that if the question referred to us is to be determined by the mere weight of authority, there can be no escape from the conclusion that the answer to the first question referred to the Full Bench must be in the affirmative and Arunendra Nath Chatterjee's case must be held to have been correctly decided. But with the utmost respect to the views expressed in the majority of decisions I am of the opinion that the view taken by this Courtin the case of Panchubala Dassi, : AIR1956Cal530 , is the right view and the answer to the first question must be in the negative.

9. It is true that the decision in Panchubala Dassi's case, : AIR1956Cal530 , suffers from certain infirmities inasmuch as it does not take into account Form No. 11 of Appendix G of Schedule 1 of the Civil Procedure Code and it relies upon certain decisions of other High Courts which have subsequently been overruled by Full Bench decisions of the same High Courts; but the conclusion arrived at by the learned Judges in Panchubala Dassi's case, : AIR1956Cal530 , appears to me to be right, even if we take into consideration the later Full Bench decisions of the other High Courts and Form No. 11 of Schedule 1 of the Civil Procedure Code.

10. Most of the decisions which have taken the contrary view proceed upon the theory that when an application under Order 44, Rule 1 is presented before the Court, its first duty is to issue a notice upon the respondent to show cause why the petitioner should not be allowed to file the appeal as a pauper without considering the question under the proviso to Rule 1. Reliance has been placed in some of the decisions upon the practice prevailing in different High Courts. With respect I venture to think that on a matter like this it is not safe to rely on practice but to proceed upon a true interpretation of the language of the statute; because practice may differ in the different High Courts and also in the different Benches of the same High Court; and the practice may also be contrary to the true spirit of the language of the statute. As I have already said on a true construction of the language of Order 44, Rule 1 read with the proviso, the first duty of the Court on the presentation of an application under Order 44, Rule 1 is to apply its mind to the questions whether the conditions of the proviso have been fulfilled and it is only after that has been done that the Court is to issue a notice in Form No. 11 of Appendix G of Schedule 1 of the Civil Procedure Code.

11. A decision on the points referred to the Full Bench would remain incomplete if I were not to consider the effect of the amendment of Order 44 Rule 1 of the Civil Procedure Code, introduced by Act 66 of 1956 of the Central Legislature. By the amendment the proviso to Order 44, Rule 1 has been deleted and it has been replaced by Sub-rule 2 of Order 44, Rule 1, which is in the following terms:

'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 to some usage having the force of law or is otherwise erroneous or unjust.'

It is important to remember that before this amendment there were three views about the true interpretation of the proviso to Order 44, Rule 1 and I have already discussed the three interpretations. The amendment was intended to supersede the view of the Madras High Court in the case of AIR 1942 Mad 478 (1), to the effect that under file provisothe Court is not required to hear even the applicant. What is significant is that the amendment makes it obligatory upon the Court to hear only the applicant or his pleader and it does not require the. Court to hear the respondent ox his pleader on the question whether the decree is contrary to law etc. In my opinion, when the Legislature had before it two conflicting views of the different High Courts as to the interpretation of the proviso to Order 44, Rule 1 and in spite of that did not make it obligatory on the Court to hear the respondent on the question whether the decree is contrary to law, the intention of the legislature must be taken to be that the Court is not required to hear the respondent at the preliminary stage on the question whether the decree is contrary to law etc. The amendment therefore is, in my opinion, a legislative recognition of the view taken in some of the reported decisions already discussed above that the satisfaction required under the proviso to Order 44, Rule 1, which is now deleted must be a tentative satisfaction up to the stage of the final hearing of the appeal and is not required to be confirmed and converted into a firm conclusion at the preliminary stage in the presence of and after hearing the respondent.

12. While holding that the satisfaction required by the proviso to Order 44, Rule 1 which is now reproduced in an amended form by the Legislature as Sub-rule 2 of Order 44, Rule 1, is a tentative satisfaction of the Court, I do not intend to whittle down its importance. I respectfully agree with the observations of Sir Lawrence Jenkins in Saldmbai's case in ILR 28 Bom 451 that the proviso is the only safeguard introduced by the Legislature to protect a successful litigant against unnecessary harassment and that it is intended to weed out vexatious and frivolous appeals by a litigant who is unable to pay court-fees. I further held that the satisfaction of the Court must be based upon a perusal of the application and the judgment and decree sought to be appealed from.

13. To sum up my conclusions about the true scope and interpretation of Order 44, Rule 1 I hold:

(a) The first duty of the Court before which an application under Order 44, Rule 1 is presented is to fix a date for the hearing of the application under the proviso to Order 44, Rule 1, which is now re-produced as Sub-rule 2 of Order 44, Rule 1 and to satisfy itself after hearing the applicant or his pleader and after perusing the application and the judgment and the decree sought to be appealed from whether the decree is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust.

(b) It is only after the Court has satisfied itself that the decree under appeal satisfies the conditions of the proviso to Order 44, Rule 1, or Sub-rule 2 to Order 44, Rule 1, as the case may be that the notice in Form No. 11 of Appendix G of Schedule 1 of the Civil Procedure Code Is to be issued or the application is to be sent down to the trial court for enquiry under Order 33, Rule 5 Clauses (a), (b), (c) and (e) of the Civil Procedure Code after issuing a notice to the respondent and the Collector according to the form of notice referred to above.

(c) That in showing cause in pursuance of the notice neither the respondent nor the Collector is entitled to show that the decree is not contrary to law etc. under the proviso or under Sub-rule 2 of Order 44, Rule 1.

(d) Where, as in the present case, the Court has issued a notice upon the respondent to show cause why the applicant should not be permitted to file the appeal as a pauper, it must be presumed that the Court has applied its mind to the proviso to Order 44, Rule 1 or Sub-rule 2 of Order 44, Rule 1 and the Court has no further jurisdiction to reconsider the question whether the application fulfils the requirements of the proviso to Order 44, Rule 1 or Sub-rule 2 of Order 44, Rule 1, in presence of the respondent.

14. For the reasons given above, I hold that the first question referred to the Full Bench must be answered in the negative and on the second question I hold that the case of 58 Cal WN 367 waswrongly decided.

15. This Rule arises out of an appeal from original decree and it is only the two questions of law which have been referred to the Full Bench. That Rule must now be placed before the appropriate Division Bench for disposal in the light of theopinion expressed by us.

16. In view of the conflicting decisions of the different High Courts on the questions referred to the Full Bench, I do not propose to make any order as to costs of the hearing before us.

Bachawat, J.

17. I agree entirely with the judgment delivered by My Lord and the answers given by him.

P. N. Mookerjee, J.

18. I agree in the answers, proposed by my Lord, and generally also with hisreasons. As, however, the main point under consideration has given rise to wide divergence of the judicial opinion and to various modes of approach, leading to diversified conclusions, I deem it my duty, particularly as I was one of the referring judges, to indicate, in brief, my own approach to the said question, which, though substantially the same as my Lord's slightly differs from his in a minor detail. That difference, however, does not affect the ultimate conclusion, and, as my Lord has dealt with the matter at great length and from all possible aspects and points of view and in a manner, which largely reflects my opinion too, I would only briefly indicate my own line of reasoning with particular reference to the minor incidental difference at the appropriate stage.

19. In making this reference, we, as referring Judges, expressed no opinion on the correctness or otherwise of either of the two differing points of view, as represented in the two conflicting Bench decisions of this Court in the two cases of 58 Cal WN 367 and : AIR1956Cal530 . Between the said two Bench decisions, there was a clear conflict and that was enough for the making of this Full Bench Reference under Chapter VII of the Appellate Side Rules and, as the conflict clearly arose on the interpretation of the proviso to Order XLIV, Rule 1 of the Code and the issue of the'show cause' notice to the opposite party in connection with the proposed or intended pauper appeal, we framed the two questions for decision in the following terms :

'(1) Whether, when a court, before which an application to file an appeal in forma pauperis under Order 44, Rule 1, is made, does not reject the application (under or) in view of the proviso to that Rule but issues notice on the opposite parties to show cause why the application to prosecute the appeal in forma pauperis should not be allowed, it is open to the Court, at a later stage, to reject the application on the ground that, under the proviso, the application should be rejected.

(2) Which of the two Bench decisions of this Court, namely, the one in the case reported in 58 Cal WN 367 and the other in the case reported in : AIR1956Cal530 is correct.Question No. 1 is, of course, the major or the primary one and, upon its decision, question No. 2 will decide itself. I would, therefore, address myself at Once to the first question.

20. To my mind, the answer to that question suggests itself on the structure of the statute and the very language of the relevant proviso. The proviso is part of the rule (Order 44, Rule 1) which, to quote it in its entirety, reads as follows :

'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:

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.'

The very language of the proviso at once suggests that, immediately the application is presented under the rule, the court, before proceeding further with it, has to consider the matter under the proviso, which means that this consideration must precede the issue of any notice to the opposite party. A closer examination of the proviso would, further, reveal that the consideration, contemplated thereunder, does not require Or postulate presence of the respondent as, in terms, it provides that

'the Court shall reject the application, unless upon a perusal thereof and of the judgment and decree appealed from, it sees no reason to think that the decree is contrary to law or to some usage having the force of law or otherwise erroneous or unjust'.

The words of the proviso are eloquent enough to indicate that it casts an initial duty on the Court to decide whether the decree, appealed from, is contrary to law or to any usage, having the force of law, or, is otherwise erroneous or unjust, and to decide this on a perusal of the application and of the judgment and decree in question and, if its decision be in the negative, it shall reject the application.

The power of rejection under the proviso, is, from its very nature, a special power, though of a limited character. It can be exercised only under and in accordance with the terms or the proviso and it would be exercisable only when the Court, upon a perusal of the application and of the judgment and decree, appealed from, is not satisfied that the decree is contrary to law or to some usage, having the force of law or is otherwise erroneous or unjust, but, if the court is so satisfied, it shall not reject the application, which means that it shall proceed with it under the main part of the rule. This special power of rejection at this initial stage is, on the face of it, different from and in addition to the Court's power in that behalf under the said main part of the rule, that is, under Order 33, Rules 5 and 7, as attracted thereby, which, obviously, includes power of rejection after hearing the opposite party (Vide Rule 7 of Order 33).

21. The scheme, indeed, of the statute seems to be clear. The application has first to be considered by the Court under the proviso and under Rule 5 of Order 33, so far as it is applicable to appeals. This consideration will of course be ex parte, that is, in the absence of the respondent, but, certainly, in the presence of the applicant, as an order of rejection, even at this stage, may irretrievably prejudice him and so cannot or should not be passed without hearing him upon the well-known principle of Audi Alterum Partem. The question of issue of notice to the respondent will arise only after this consideration, if the application survives the same, or, in other words, the notice in Form No. 11, Appendix G. Schedule I, of the Code, which is referable to Order 44, Rule 1, is really equated to the notice under Order 33, Rule 6, relating to suits (Vide Form No. 12, Appendix H, Schedule I, of the Code). The difference in language between the two notices is of no consequence, as it is easily explained by the language of Order 33, Rule 6, which, in terms, prescribes the notice and the absence of any specific provision in that behalf in Order 44, Rule 1. In any event, the language of the notice, however wide, cannot alter or affect the scheme of the said provision (Order 44, Rule 1, including its proviso), as explained hereinbefore.

22. What I have said above is quite sufficient for answering the points under reference as proposed by my Lord and, as pointed out by him, that view receives support from the recent amendment (Vide Central Act No. LXVI of 1956) of this particular provision (Order 44), quoted by my Lord in his judgment. That amendment came in the wake of acute divergence of judicial opinion on the construction of the proviso in question, that divergence manifesting itself under three different or distinct heads and representing three well-marked and well-defined points of view, namely:

(a) The proviso required or contempleted no hearing of the parties not even rf the applicant.

(b) it required only hearing of the applicant and

(c) it contemplated and covered also hiring of the opposite party.

The amendment, to which reference has been made above, definitely adopted the second or the intermediate view-point and thus accorded sufficient legislative recognition to the same and indicated quiteclearly and sufficiently obvious legislative preference for that particular point of view. Indeed, the legislature has now expressed its own intention which accords with our interpretation of the relevant statutory provision.

23. Having thus agreed with my Lord's conclusion, I would only, incidentally, point out, with respect, that it may not be quite accurate to regard the proviso to Order 44, Rule 1 as a substitute for Clause (d) of Order 33, Rule 5 in cases of appeals. To so regard it may let in Sub-rule 7 of the said order in the matter of the said proviso, thus entitling the respondent, apparently, at least, to a hearing under it. It is possible, however, to approach the matter from a different point of view. Cause of action in relation to an appeal may well be held to be the passing of the decree to the appellant's prejudice. The infirmity or validity of the decree would only show the existence or non-existence of a valid cause ot action. Clause (d) of Order 33, Rule 5, therefore, would not, necessarily or inherently, be inapplicable to appeals under Order 44, Rule 1 but, for practical purposes, it would be more or less useless and of no significance or importance, as the existence of the decree, and that, again, normally, to the applicant's prejudice, constituting the cause of action for the appeal, may well be accepted as a fact in such cases and as, further, in terms of that clause (Order 33, Rule 5(d) ), to apply it to appeals, the appellant's allegations must not show such cause of action, which would be almost a contradiction in terms or, at least, a rare event or possibility in practice.

24. The cases on the point have all been carefully collected and collated by my Lord and very neatly summarised and analysed by him and they have also all been very fully and exhaustively dealt with and discussed by him. Nothing, materially useful, can be added to that discourse or discussion, and no purpose would be served by repetition. I would, therefore, content myself by merely drawing particular attention to and : AIR1959Bom67 , the relevant discussion wherein substantially supports our answers to the questions under reference.

25. In the premises, I would agree with my Lord in answering the points under reference, assuggested by him, that is, by answering the first question in the negative, and the second by affirming the correctness of : AIR1956Cal530 and overruling the other or earlier decision : : AIR1956Cal530 . Any other view would lead to the various anomalies, which have been noted and discussed by my Lord and which were pointed out to Mr. Mitter during arguments but to which no satisfactory answer could be given by him.


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