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A.K. Sundaram vs Government of India

Madras High Court · Decided on 23 July 1965 · Citation: AIR 1966 Mad 52

HON’BLE JUDGES
Natesan, J
ACTS & SECTIONS REFERRED
Civil Procedure Code, 1908 (CPC) — Order 44 Rule 1, Order 44 Rule 1(2)
CASE NUMBER
Civil Revision Petition No. 1714 of 1962
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Judgment

17 paragraphs · 401 words

Natesan, J.—This revision is directed against the dismissal in limine in Chamber of an application for leave to appeal in forma pauperis made

by the petitioner herein in the District Court, Madurai. The learned District Judge in his order just states that he has perused the judgment of the

Subordinate Judge in the lower court and was directing the appellant to pay court fees under O. 44 , R. 1, Cl. (2) C. P. Code by 13-6-1962 on

pain of the appeal being rejected on default. The counsel who appeared for the petitioner in the lower court has filed an affidavit that he was not

heard in the matter and the appeal was not brought to the Bench and he was not given an opportunity to argue; that is, the case for the petitioner

before me is that the matter was disposed of without hearing the petitioner or his counsel.

2.

Bow O. 44, R. 1 of the C. P. Code which applies to pauper appeals provides:

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.

3.

So it is not sufficient that the learned District Judge has perused the judgment of the lower court. He must have given a hearing to the applicant

or his pleader fixing a date for hearing. In the absence of such hearing, the order cannot be sustained. I accept the affidavit of the counsel that he

was given no hearing and reject the recital in the preamble as to the presence of counsel as routine drafting. The learned Government Pleader has

nothing to say in the matter. In the circumstances the order rejecting S. No. 1525 of C. R. 17 of District Court, Madurai in the unnumbered appeal

is set aside. The matter will be taken up again for consideration under Order 44, R. 1 Cl. (2) by the District Court and disposed of according to

law. This revision is accordingly allowed. The papers will be sent back as expeditiously as possible as this case has been pending since 1962.

4.

Revision allowed.