Arunendra Nath Chatterjee and Another vs Sanat Kumar Mukherjee and Others

Mookerjee, J.—The two petitioners before us filed an application on January 2, 1953, for leave to appeal in forma pauperis along with a memorandum of appeal. On January 22, 1953, this Rule was issued upon the opposite parties to show cause why the petitioners should not be allowed to file the appeal in this Court in forma pauperis or such further or other order or orders made as to this Court might seem fit and proper. Pending the hearing of this Rule records were sent down to the President, Calcutta, Improvement Tribunal, for enquiry as to the alleged pauperism of the petitioners after giving notice of the same to the Government Pleader and the opposite parties. The Rule was directed to be set down for hearing in the presence of the opposite parties and of the senior Government Pleader, High Court, to whom also notice of the Rule was directed to be issued. On receipt of the report from the President of the Calcutta Improvement Tribunal about the enquiry held by him in the presence of all the parties and the Government Advocate this Rule has been set down for hearing.

Before we deal with the merits of the application, we have to deal with the contention raised by the learned Advocate appearing in support of the Rule that at the present stage we are limited to an enquiry as to the pauperism of the two petitioners. He contended that after the Rule had been issued on the opposite parties the Court-must be taken to have already been satisfied that the decree against which the appeal is to be preferred was contrary to law or to some usage having the force of law or was otherwise erroneous or unjust. He relied upon certain decisions to which reference will, be made hereafter.

It is contended on behalf of the petitioners that the procedure envisaged under rule 1 of Order XLIV of the CPC is that when an application is filed by a person accompanied by a memorandum of appeal praying to be allowed to appeal as a pauper the Court is required, in the first instance, to peruse the application and the judgment and decree appealed from and to consider whether the decree is one contrary to law or to some usage having the force of law or is otherwise erroneous or unjust as provided in the proviso to the said rule. It is only after the Court is so satisfied that a Rule may be issued by the Court for a decision in the presence of the opposite party as to whether the petitioners should he allowed to prefer the appeal in forma pauperis.

The practice in this Court has, as far as I know, 1 een contrary to what has been contended before us by the learned Advocate for the petitioners. However long a practice may be, if the provisions of the law require a differpnt procedure to be followed, the practice is to be set right. It is, therefore, necessary for us to consider without reference to the practice which has been in vogue in this Court, as to what was the intention of the Legislature so far as the disposal of applications for being allowed to appeal as paupers may be concerned.

On the face of it the proviso would be attracted only if the applicant is found by the Court to be a pauper. There is no occasion for the Court to consider at the initial stage, when an application is filed, to consider whether the decree is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust. If the applicant is not a pauper, the Court is not called upon to enter into a consideration as required under the last portion of the proviso.

The Court has, no doubt, jurisdiction to reject a petition at the ex parte hearing, if the Court finds that there is no prima facie case even for issuing a notice upon the opposite party. If reference is made in this connection to the provisions contained in Order XXXIII of the CPC which deals with suits by paupers, the procedure which is followed there will immediately become clear. Rule 5 of Order XXXIII lays down certain conditions to be fulfilled by an applicant who wants to sue as a pauper, and if the Court finds that anyone or more of these conditions are not fulfilled the application may be dismissed in limine. If the Court during the hearing at that preliminary stage does not think that the application should be rejected then under rule 6 of the same Order the Court is to fix a date for hearing the opposite party and the Government Pleader, and the final order will be passed as laid down in rules 7 and 8 of the same order. It is unquestionable that even though at the preliminary stage the Court did not reject the petition under rule 5 of Order XXXIII, it is open to the Court to hear objections raised by the opposite parties and the Government Pleader, even on points which arise on rule 5, and arrive at a decision that the application is not maintainable. The Court would be justified and would acting within its jurisdiction ta pass the final order when the final hearing takes place in the presence of the opposite parties.

In the first paragraph of rule 1 of Order XLIV of the CPC it is made abundantly clear that the application which may be presented by a petitioner for leave to appeal in forma pauperis is "subject, in all matters, including the presentation of such application, to the provisions re-fating to suits by paupers, in so far those provisions are applicable." Such provisions as are contained in Order XXXIII relating to suits by paupers are attracted in so far as they are applicable to applications for permission to file appeals in forma pauperis.

The procedure as laid down in Order XXXIII, therefore, though not reproduced in terms in order XLIV, has been made applicable by specific reference in rule 1 of Order XLIV.

The interpretation I have given is also supported from first principles, if we look at it from another angle of vision. It is now well settled as a rule of jurisprudence that exparte. orders should not be passed by court as final order without giving an opportunity to the parties affected to make their submissions thereon. If the interpretation which we have been asked to accept by the learned Advocate for the petitioners were to be given effect to, the position will be that a decision is. reached by the Court before the opposite parties have appeared in the case and while dealing with the application at the ox parte stage the opposite parties are denied the fundamental right of being heard before a final decision is made against them. For the purpose of issuing notices, a court may at the preliminary stage, come to a decision, only as a preliminary one for issuing a Rule; that cannot and ought not to be taken to be a final decision which would be binding on the opposite parties who have had no opportunity to make any submission before the Court.

This interpretation of the terms of the provisions contained in rule 1 of Order XLIV of the CPC is in consonance with the interpretation put on these provisions in all the different High Courts in India although in some of these courts a contrary view had at one stage or other been expressed, but within a short time a Full Bench had set the matter right. I would just indicate in short the trend of decisions in other High Courts which support the conclusion which I have indicated above.

In the Patna High Court the practice which was in force in Calcutta was being followed and the opposite party was being heard before a final decision was reached not only on the question of pauperism, but also on the question whether the decree appealed against was contrary to law or to some-usage having the force of law or otherwise erroneous or unjust, until Bhokhari Singh and Others Vs. The King-Emperor, , sitting singly, expressed himself in a different way. This view was followed in Raghunath Prasad v. Must. Ram Piari [(1928) I. L. R. 6 Pat. 687], and Must. Bibi Sogra v. Radhakishun [(1929) ILR 7 Pat. 825]. The next year, however, the matter was referred to a Full Bench in Tiluk Mahsto v. Akhil Kishore (I. L. R. 10 Pat. 606 F.B.). The question which was submitted to the Full Bench was whether during the hearing of the Rule under Order XLIV, rule 1 the question whether the judgment was contrary to law could, be considered. The answer was in the affirmative, and it was observed that notwithstanding the fact that the Court while dealing with the application ex parte did not think that any of the grounds mentioned in rule 5 of Order XXXIII existed for rejecting the application, it was bound to reject it when the other side came and showed that the application was fit to be rejected on any of the grounds mentioned in that rule. The fact that the Court did not reject the application before issuing notices to the opposite party and the Government Pleader, did not debar them from considering the question and having the prayer to sue as a pauper rejected.

The procedure as laid down in Order XXXITI is introduced into Order XLIV, and the same should be followed in dealing with applications by paupers for permission to file appeals. This has been the law in Patna ever since.

The view expressed by the Patna High Court in the Full Bench case referred to above was accepted in Banarasi Das v. Munshi Ram [(1934) J.L.R. 15 Lah. 132].

In the Oudh Court for some years the earlier view of the Patna High Court as also in a single Judge decision of the Allahabad High Court had been accepted until in AIR 1937 222 (Oudh) , the law was settled as interpreted by the Full Bench of the Patna High Court.

Similarly in Powdhari v. Ram Sanowari [(1934) I. L. R. 57 All. 440 F.B.], the earlier decision of a single Judge in Hulraji v. Balkaran Sing [(1934) ILR 54 All. 394], was overruled and the law was interpreted as already stated above.

In Mutturi Suryanarayanamurty Vs. Karumuri Nagachandramowli, , it was held that when the Appellate Court received an application for leave to appeal in forma pauperis and without considering whether or not there was any substance in the appeal notice was issued to the respondent, the Judge at the time of the final hearing was entitled to rescind his earlier order issuing notice--if on considering the questions of the merits he came to the conclusion that leave ought not to be granted. It was, however, observed that when the question of merits had been considered before issuing the notice it might not be open to the Court to reconsider it after notice. This was a decision of a Judge sitting singly. There is however an earlier decision by a Division Bench of that court, S. K. M R. M. Somasundaram Chettiar v. R. A. A. R. Arunachalam Chettiar |. (1932) I. L. R. 53 Mad 982] where it was definitely laid down that an ex parte order granting leave to appeal in forma pauperis was not binding on the respondent and did not preclude him from arguing at a later stage that there was no substance in the appeal. Considering even the fact that there was a longstanding practice in that Court not to hear the respondent at the stage when after notice to the respondent the application for leave to appeal was to be heard finally, it is open to the Court to hear the respondent at that stage. The respondent may as a matter of indulgence be but is not entitled as of right to be heard on the question whether the decision of the Court below is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust. Though in that particular case the Court granted the pauper application, hearing of the respondent at that stage can only connote that the Court had jurisdiction to decide after hearing the respondent that the application should not fee granted on the merits.

So far as the Bombay High Court is concerned, in Ladobi Shaikh Umar v. Sanharlal Pannalal Kalantri [(1947) 50 Bom L. R. 133], Stone, C. J., and Dixit J., while discussing the procedure which should be followed under Order XLIV, rule 1 obse-crved;

It is contended on behalf of the respondent that the Court should first see if the requirements of the proviso to rule 1 are satisfied.

This involves the assumption that the applicant is a pauper. It seems to us that the first thing to do is to see that the applicant is a pauper. If he is, the next thing to do is to see if the conditions in the proviso to rule 1. Order XLIV are satisfied. If the applicant is not a pauper, there is no question of compliance of the terms of the proviso.

It is not necessary at the initial stage, as was pointed out by the Division Bench, for the Court to arrive at a definite conclusion that the decree complained against is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust, and merely because the Court has issued a Rule calling upon the opposite party to show cause why the petitioner should not be allowed to file an appeal in forma pauperis does not debar the Court from considering all the questions which arise, and particularly so, after giving a hearing to the opposite party and also to the, Government Pleader, if notice has been given to him as well.

In this view we must overrule the, objections raised by the petitioners that the Court is not competent to enter into the question at this stage as to whether the decree proposed to be appealed against is one hit by the proviso to rule 1 of Order XLIV of the Code.

While dealing with the question as to whether the decree is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust, the only papers which the Court is called upon to and can look into are the petition presented to this Court, and the copies of the judgment and decree. It has been repeatedly pointed out that it is not for the Court for the purpose of this enquiry to hold that the decree is contrary to law; but if the Court has reason to think that the decree is contrary to law, that will be sufficient under the proviso. There has been some difference of opinion as to the exact nature of the finding which the Court can reach. In the case of In re., Peram Ckennamma [(1930) ILR 53 Mad. 245], the Court held the view that if there was a substantial question of law and the appellant was a pauper, permission would be given as a matter of course. But three years later in Thiripurameni Narayana Rao v Sonrapaneni Veerayya (I. L. R. 56 Man. 323), the Court pointed out that it was not so. The difference in the tests to be applied between an application filed to sue as a pauper and an application filed for permission to prosecute an appeal in forma pauperis is fundamental and well marked. While in the case of an application by a pauper for permission to sue, he is to follow a particular procedure, and with regard to the merits of the claim in the proposed suit no enquiry is to be made by the Court, although the Court is to look into whether there is a cause of action, in the case of an application by a pauper for permission to file an appeal in forma pauperis, however, he is to satisfy the court, as in the proviso to rule 1 of Order XLIV, that the court has 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. In the case of a pauper appeal, therefore, the court is called upon to examine the merits of the appeal and not merely whether the pauper has got a cause of action. The proviso i3 a mandatory one, and contemplates that on a perusal of the application, the judgment and decree, and nothing-else, the court would come to the view that the decree is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust.

Keening this in view we proceed to consider the report submitted by the President of the Calcutta Improvement Tribunal about the pauperism of the two applicants. One of the applicants has been found to be a pauper and the Government Advocate also did not before us raise any objection thereto. With regard to the other applicant, the report of the President is that the applicant is drawing a substantive ray of Rs. 130 per month with deerness allowance. No evidence could be adduced by the opposite parties before the President that the applicant had got any property from which he could pay the court-fees required to be paid in his share. The learned President, however, expressed the view that he must have saved sufficient funds during the period of his service. That is not the test to be applied. Whether a person earning particular amount per month should or could have saved sufficient funds for filing an appeal hereafter is not a matter into which the court can enter, there being no evidence on the record to contradict the statement by the applicant that he had not sufficient funds. It must be held that he also should he declared to be a pauper, not able to pay the court-fees on the memorandum of appeal.

On the conclusion reached that both the applicants are paupers, we proceed to consider whether the proviso to rule 1 of Order XLIV of the CPC is satisfied. From the judgment, read with the petition filed in this court, it appears that the principal question, so far as the petitioners are concerned is whether Sukhendra, the father of the other claimants opposite parties, was the son of Sri Krishna through Rajendra Bala. The whole question depends on the evidence as led by the parties. From the discussion of the respective cases, as they appear in the judgment of the President, there is no escape from the conclusion that the decision depends as to which set of evidence is to be believed and which set is to be disbelieved. That being a pure question of fact, dependent upon the appreciation of the evidence, it cannot be said that the point for decision in the appeal is contrary to law, or to some usage having the force of law. An attempt was no doubt made to rely upon the last clause in the proviso that the decree was otherwise erroneous or unjust. Without expressing our views as to the evidentiary value of the various facts brought out by both the parties, all that we need say is that on the face of the judgment the decree cannot be said to be unjust. If and when the entire evidence is gone into by the court, if the appeal is ultimately prosecuted by the petitioners, it would be for the court at the final stage to determine whether the decision is correct or incorrect. We must not be taken to have expressed any final opinion on this point Our observations are for the limited purpose of considering whether the terms as laid down in the proviso to rule 1 of Order XLIV are satisfied. We do not think that the petitioners have been able to satisfy us.

This Rule is accordingly discharged, but in the circumstances we make no order as to costs.

The petitioners will have time till September 7, 1953, to file the required court-fees if they intend to prosecute the appeal in the ordinary way

As prayed for by the petitioners, we direct that the amount claimed by the petitioners and now lying in deposit with the President, Calcutta Improvement Tribunal, be retained by him for a further period of a fortnight from the date of the receipt of a copy of this order by him in order to enable the petitioners to take such further steps as they may be advised.

Renupada Mukherjee, J.

I agree.