Het Ram vs Chandgi Ram etc.

Dua, J.—This is an application under Order 44, Rule 1, Code of Civil Procedure, for being allowed to appeal as a pauper from the judgment and decree of the learned Subordinate Judge 1st Class, Sonepat, dated 31st August 1964 There is also before us an application u/s 5 of the Indian Limitation Act seeking extension of time.

Dealing first with the application u/s 5, Indian Limitation Act, it may be noted that the judgment of the Court below is dated 31st August 1934. An application for a copy of the judgment and decree was made by the applicant on 4th September, 1964, but a copy of the judgment alone was granted on 17th September, 1964. The decree having not been prepared, its copy was not granted. It may be pointed out that in the judgment, the decree-sheet was ordered to be prepared, after payment of court-fee by defendant No. 1, Chandgi Ram. It is stated at the bar that the amount of court-fee was not paid and it was for this reason that the decree sheet was not prepared. The decree sheet was prepared on 8th October, 1964 and another application for securing a copy thereof was presented on 26th November, 1964. This was made available on 28th November, 1964, and the petition for leave to appeal was presented in this Court on 2nd December, 1964.

The argument urged on behalf of the petitioner is that the original application contained a prayer for a copy of the decree-sheet as well, and merely because on account of a default on the part of defendant No. 1, the decree-sheet was not prepared and the petitioner had to put in a fresh application for copy, he cannot be deprived of the benefit of the earlier application for a copy of the decree-sheet and time, requisite must be counted from 4th September, 1964. I am inclined to agree with his contention. Merely because in the subsequent application, it was not mentioned that it is a reminder of the earlier application and in ignorance or by oversight, or even by way of abundant caution, it is presented as a fresh application, would not, in my opinion, prejudice the present petitioner in the matter of limitation. Late payment of court-fee by defendant No. 1 and the resultant delayed preparation of the decree sheet may not on any sound principle deprive the appellant, of his right to exclude as time requisite for obtaining copy of the decree period from 4th September, 1964. The appellant cannot be held guilty of carelessness, laches or negligence : on the other hand, he seems to me to have taken reasonable and proper steps as early as 4th September, 1964 to obtain copy of the decree-sheet. An application having been duly received by the copying department for supplying a copy of the decree it was, in my view, only fair and proper on their part to call upon the petitioner to come and take delivery of the decree-sheet as soon as it was ready. From this point of view, the petition under Order 44, Rule 1, CPC may well be considered to be within limitation. In case, however, this petition is to be considered to have been presented after the period of limitation. I would in the present circumstances feel no hesitation in extending the period, there being, in ray view, clearly sufficient cause for the delay. The rules of procedure in such matters have to be construed in a practical way in order to facilitate justice and further its ends not as penal enactments for punishment and penalities or something designed to trip people up. Be that as it may, there being no opposition to this application on behalf of the respondents before us. it is unnecessary to pursue the matter further. The application under Order 44, Rule 1, must, in view of the foregoing discussion, be held to be within limitation.

In so far as the question whether it is a fit case for allowing the petitioner to appeal as a pauper is concerned, his learned counsel has very strongly urged that it is not open to this Court at this stage to go into the question whether the decree appealed from is contrary to law or some usage having the force of law or is otherwise erroneous or unjust within the contemplation of Order 44, Rule 1(2), Civil Procedure Code. According to his submission, once this Court has issued notice on this application, the Court should be deemed finally to have come to a conclusion in his favour and that should conclude the matter finally so far as this point is concerned, the only question which the Court can now go into is whether or not the petitioner is in fact a pauper. In support of his contention, the counsel has relied on Shib Krishan Das v. Panchanan Ganguly, etc. AIR 1061 Cal 346 (F.B ) and support has specifically been sought from paragraph 7 of the judgment at p. 349, of the report. In addition, reference has been made to Krishna Bhatta Vs. Ananta Bhatta, and Abdul Majid Ibrahim Vs. Bhaurao Atmaram Patil, . The counsel has also cited a recent Bench decision of this Court in Smt. Mohd.-un-Nisa Begum Vs. Fayaz Ali Hashmi, and it has been pointed out that though in the reported case, the Bench did not ultimately, follow the view adopted in the Calcutta decision, nevertheless, the judgment does clearly suggest that the view taken by the Calcutta High Court is more in accord with the legislative intent.

On behalf of the respondents, on the other hand, reliance has been placed on Benarsi Das etc. v. Munshi Ram etc. AIR 1931 Lah, 72, Tilak Mahto Vs. Akhil Kishore and Others, Mt. Powdhari Vs. Mt. Ram Sanwari and Others, , AIR 1937 222 (Oudh) and Narsingh Dass Vs. Mool Raj and Others, . In support of the contention that it is open to the respondents after notice to come and raise the question that the decree sought to be appealed against is not contrary to law or any usage having the force of law, nor is it otherwise erroneous or unjust. In Benarsi Das''s case, a Division Bench of the Lahore High Court has observed that any order which has been passed behind the back of the party should not operate to the prejudice of that party and that where an order issuing notice is passed in the absence of the respondents, they cannot be precluded as a result of that order from arguing before the Court that the decree sought to be appealed against is neither contrary to law or to some usage having the force of law, nor is it otherwise erroneous or unjust. In this decision, reference is made, inter alia, to AIR 1929 514 (Lahore) where Shadi Lal, C.J. observed:

I fail to understand why the order of admission which is only an ex-parte order should be binding upon the respondent and why he should be precluded from showing that the case does not fulfil the requirements of the law as encased by the aforesaid proviso. Moreover, it sometimes happens that the Court, before finally deciding the question, desires to hear the respondent, and there is no valid reason why the order of admission should prevent the Court from pronouncing its decision Hereupon at the final hearing.

It is of course argued on behalf of the petitioner that it is open to the respondents to urge that the petitioner is not a pauper, but in so far as the question of the decree being contrary to law etc., is concerned, they have no right to reopen the question and on that ground to insist that the petitioner must pay full court-fee, this being a matter between the State and the appellant. It has also been argued that the law could not have contemplated two precisely identical opportunities to the respondents to support the legality and justness of the impugned decree: one at the stage of granting permission to appeal as a pauper and the other at the final hearing of the appeal itself. The respondents have on the other hand laid stress on the basic principle that no order passed at the back of a party can bind him, as according to our rules of procedure, which are grounded on principles of natural justice, decisions should not ordinarily be reached behind his back. It is submitted that in reality, there are no two exactly similar opportunities afforded to the respondents to urge the same point on the same material, which can be considered to be contrary to legislative intent. At the stage of granting leave to appeal as a pauper, the parties can argue on the basis only of the application, the decree and the judgment, for the purpose of showing the infirmity within the purview of Order 44, Rule 1. of the Code: at the hearing of the appeal itself after admission and notice, the arguments have, on the other hand, to be addressed on the basis of the whole record before the Court, and the adjudication of the appeal is to proceed on the basis of the entire record. The learned Advocate-General appearing for the State has undoubtedly suggested that so far as the State is concerned, it cannot possibly be said to have two opportunities to argue this point and the State, it is emphasised, is certainly entitled to revenue on the appeal in accordance with law.

In our opinion, it is not necessary to empress any considered opinion on the relative strength of the rival contentions. Suffice it to say that in so far as this Court is concerned, it has consistently been held that the respondents would be entitled after notice to come and raise the question whether or not the decree sought to be appealed against is contrary to law or some usage having the force of law or is otherwise erroneous or unjust, and it is too late in the day now to depart from this consistent practice. According to the Bench decision in the case of Mohd-un-Nisa Begum, the amendment of Rule 1 of Order 44 has little bearing on the crucial question whether or not, the Court in not outright rejecting the appeal, is precluded from going further into the question whether the judgment sought to be appealed from is prima facie right or wrong, after the opposite party has appeared in response to notice. The long course of decisions, according to this judgment, is not affected by the amendment.

After going through the application, the judgment and the decree sought to be appealed from, we find that prima facie, it is not contrary to any law or some usage having the force of law, nor is it otherwise erroneous or unjust for the purpose of Order 44, Rule 1 (2), C. P. Code. The petition for leave to appeal as a pauper thus cannot be allowed.

The petitioner has as a last resort asked for time to make good the deficiency in Court-fee. In our, opinion, the petitioner is entitled to two months'' time to make good this deficiency. At the hearing of the appeal, our present decision would not stand in the way of the appellant in showing that on the entire record the appeal deserves to prevail. There would be no order as to costs of the present proceedings.

P.C. Pandit, J.

I agree.