K.C. Das Gupta, J.
1. This Rule raises the question whether when a court before which an application to file an appeal in forma pauperis under Order 44, Rule 1, Civil P. C. 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 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.
It appears in the present case that a defendant against whom a suit had been decreed by a Munsif of Serampore filed an application to prosecute the appeal in forma pauperis on the ground that she was unable to pay the fee required for the memorandum of appeal. The learned Judge examined the applicant and thereafter directed issue of notice. The notice that was issued called upon the opposite party to produce evidence, if they so desired, to show' that the applicant was not a pauper and stated further that on the date mentioned the applicant would also produce evidence to show that she was a pauper. Later on, an order was passed by the learned Judge appa-rently after hearing both sides and consideration of the evidence on the record that there was no reason to differ from the judgment and decree and he held that the judgment was neither erroneous nor unjust, and he concluded with the following order : 'Under the circumstances, the appellant cannot be allowed leave to sue in forma pauperis. Accordingly, the petition for leave to sue in forma pauperis is rejected.
2. Though the question, whether such an order can be passed at a later stage after noticehad issued on the opposite party, has not come up earlier before this Court, the matter appears to have been considered in some of the other High Courts in India.
3. In Mt. Hubraji v. Balkaran Singh : AIR1933All11 , Kendall J. held that a court cannot reject an application to appeal in forma pauperis under Order 44, Rule 1, Civil P. C., after issuing notice to the Government Pleader and to the respondent. Rejecting the argument that as notice had been issued to the opposite party, it must have been intended that he should have a chance of pointing out that the decree was 'contrary to law or some usage having the force of law or is otherwise erroneous or unjust', his Lordship pointed out that the respondent would have an opportunity of proving this to the Court when tne appeal was heard on its merits, but that 'he has no right to put back the hands of the clock and ask the Court to reject the application summarily under that special proviso when the proceedings have already passed beyond the summary stage'. His Lordship further observed :
'That this is so is indeed indicated by the form of the notice issued to him, which only calls on him to show why the applicant should not be allowed to. appeal as a pauper. It does not call on him to show why the application snould be rejected because the decree is contrary to law or some usage having the force of law or is otherwise erroneous or unjust. The notice, in fact, relates only to the application and not to the appeal against the decree.'
4. In K. Nagarattamma v. I. Nagayya, 1933 Mad 658 (AIR V 20) (B), Curgenven J. held similarly that when once issue of notice is directed, the appeal should not be dismissed subequently under the proviso. His Lordship observed;
'It is impossible to contend on the terms of the proviso that the Court would be justified in issuing notice in order to make up its mind whether so to reject the application.
Accordingly, it must, I think, be presumed that when the first learned Judge, who dealt with the application, directed the issue of notice, he had applied his mind to this provision and had decided not to reject the appeal under it. It could not, therefore, be open to his successor to reconsider this matter and come to a contrary conclusion.'
5. The same view was taken in several Patna cases, namely, Raghunath Prasad v. Mt. Rampiari Kuer, 1923 Pat 118 (AIR V 15) (C); Mt. Bibi Sogra v. Radha Kishun, 1929 Pat 27 (AIR V 16) (D), and Buchan Dai v. Jugal Kishore, 1924 Pat 791 (AIR V 11) (E).
6. In Tilak Mahton v. Akhil Kishore, 1931 Pat 183 (AIR V 18) (F), when this question came up before Wort and Fazl Ali JJ., they dissented from the view taken in the earlier Patna cases & referred the matter to the Full Bench. The Full Bench consisting of Jwala Prasad, Wort and Kul-want Sahay JJ. overruled the previous Patna decisions and held in agreement with a view which had been taken by the Lahore High Court in Basant Kuer v. Chandulal; 1929 Lah 514, (AIR V 16) (G) that even though notice has issued on the opposite party, the Court could not preclude him from showing that the case did not comply with the provisions and was not a fit case in which leave ought to be granted, and that even then it was within the jurisdiction of the Court to consider the question whether the application to prosecute the appeal in forma pauperis should be rejected in view of the proviso to Order 44, Rule 1.
7. For a proper appreciation of the points Involved, it is necessary to consider the schemeof the law as regards pauper appeals. It is obvious that the Legislature has thought it fit to make it more difficult for a person to get leave to prefer an appeal in forma pauperis than to bring a suit in forma pauperis. When there has been already a suit which has been disposed of by a court of law and either the plaintiff or the defendant asks for leave to appeal in forma pauperis, the Legislature requires that in addition to proving that the intending appellant is a pauper that he should induce the Court to think that the decree is contrary to law or to some usage having the force of Jaw or is otherwise erroneous or unjust. After providing in the operative part of the rule that a person entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of appeal, may be allowed to appeal as a pauper, the rule provides that this will be '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.' Then follows the proviso which is in these words:
'..... 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 question which arises is what is the proper stage when the Court has to peruse the application, the judgment and decree for the purpose of deciding whether there is 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. Does the rule contemplate that the Court will order issue of notice to the opposite party with- . out first applying its mind to the question whether the proviso is applicable, and that this question will be considered only when the other party appears? It is worth noting that the proviso limits the Court to a perusal of the application & the judgment and decree in deciding the question and does not permit it even to read the evidence. It seems to me clear that if it had been the intention that the question of the applicability of the proviso should be decided after notice had issued on the parties, the rule would have said so clearly and would have indicated that in addition to the perusal of the application and the judgment and decree, the Court will hear both parties. The omission in the proviso of the requirement to hear any of the parties compels the conclusion that what is intended is that at the very first stage immediately after the application is presented with a copy of the judgment and decree with the memorandum of appeal, the Court is bound to read the application, the judgment and decree and address to itself the question, 'does the proviso apply'. It seems only fair that this should be so. If this was not done at the initial stage, it might very well be that a person who is really a pauper would 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 if on the very preliminary ground that there is no reason to think that the proviso is applicable, the application is rejected. In my opinion, it was with a view to prevent this unnecessary harassment to a party wishing to prefer an appeal as a pauper and at the same time to avoid a successful litigant being harassed unnecessarily that this proviso was included making it incumbent on the Court to consider the question of applicability of the proviso at the very initial stage.
8. When, in the present case, the Courtissued the notice, we are bound to presume that the Court did act in accordance with law and consequently that it did apply its mind to the question which by law it was bound to do and that after such application it came to the conclusion that there was reason to think that the decree was contrary to law or to some usage having the force of law or was otherwise erroneous -or unjust. The mere fact, that there is no mention in the record of the case that the Court has considered the matter, is no ground for thinking that the Court did not consider the matter.
9. Assuming, therefore, as we must, that the Court has considered the matter at the preliminary stage and having come to the conclusion that there was reason to think that the decree was contrary to law or to some usage having the force of law, or was otherwise erroneous or unjust, issued notice on the opposite party to show cause why the appellant should not be allowed to prefer an appeal in forma pauperis, is it still open to it again to go into the question? The proviso clearly does not contemplate any further consideration. At the same time, it does not say in so many words that it will not consider the matter again. If the purpose of the notice on the opposite party was to give him an opportunity to show cause why the Court shall not reject the application, there would be good ground for thinking that it was right and proper for the Court to go into this question again. The notice, however, does not ask the opposite party to show cause why the application should not be rejected but asks him to show cause why the appellant should not be allowed to prosecute the appeal as a pauper. The reasonable conclusion from the words used in the notice seems to me to be that the opposite party is asked whether it challenges the truth of the statement that the appellant is a pauper and if he does so challenge to produce proper evidence on the date fixed. The notice, in my opinion, cannot be read as to call upon him to show cause why the application should not be rejected.
10. The Full Bench of the Patna High Court appears to have thought that Just as in the matter of applications under Section 5, Indian Limitation Act, it is necessary that the decision must be made after hearing both parties and so even if an order has been made in the absence of the respondent condoning the delay under Section 5, the right of the respondents to challenge the correctness of that finding remains, so where an application to prefer an appeal in forma pauperis has not been rejected under the proviso, it is still open to the respondent to show that it should be rejected. In my judgment, it is improper and unsafe to draw an analogy between the case of an application to file an appeal in forma pauperis and an application under Section 5, Limitation Act to condone delay. In the latter case, the respondent has acquired a valuable right by reason of the fact that the appeal has been barred by limitation and before such a right can be taken away, it is only just that the party whose right is being taken away should be given a hearing. It will be an abuse of language to say that the omission to reject an appeal in forma pauperis in any way affects a vested right of the respondent.
11. It seems to me that to allow the question of applicability of the proviso to be canvassed after the opposite party has appeared on issue of notice, would be manifestly unjust as the person claiming to be a pauper may justifiably think once the application has not been rejected at the preliminary stage under the proviso that the Court has found reason to think that the decreewas contrary to law or to some usage having the force of law or was otherwise erroneous or unjust, and on that basis may have come to trouble and expense in producing witnesses of pauperism.
12. On all these considerations, I find myself fully in agreement with the view taken by the Allahabad High Court, the Madras High Court and the earlier decisions of the Patna High Court and in disagreement with the view taken by the Lahore High Court and the Full Bench of the Patna High Court.
13. I have, therefore, come to the conclusion that in the present case, the learned Judge having once issued notice on the opposite party after presumably seeing reason to think that the decree was contrary to law or to some usage having the force of law or was otherwise erroneous or unjust acted irregularly in the exercise of jurisdiction in considering the applicability of the proviso again and in rejecting the application on the basis of the proviso.
14. I would, therefore, make this Rule ab- solute, set aside the order passed by the learned Judge and direct that the application for being permitted to prefer an appeal in forma pauperis be now disposed of in accordance with law, on consideration of evidence as regards pauperism that may be adduced by both sides.
15. Parties will bear their costs in this Rule.
16. I agree.