Kanni vs Viswanatha Chettiar and Others

Srinivasan, J.—Our learned brother Ramaprasada Rao, J., has thought it necessary to make a reference to a Bench for a decision upon the

following question:

Whether the Court which entertains the application for leave to appeal in forma pauperis under Order XLIV, Rule 1 and issues a notice in due

form to the opposite party without rejecting it under Order XLIV. Rule 1 (2) can rescind its order to entertain the application on the ground that at

that stage, it is of the opinion that it ought to be rejected because the decree is not contrary to law, or to some usage having the force of law or is

otherwise erroneous or unjust.

The point involved appears to be simple and amply covered by authority which, to our minds, is clearly expressed in the decisions to which we

shall presently advert. The learned District Judge, against whose order the civil revision petition has been taken, had the pauper appeal petition

before him for admission. He apparently thought it fit to issue notice to the Respondent, not on the question of the pauperism of the appeal

Petitioner but on the question whether the decree sought to be appealed from was contrary to law or to some usage having the force of law, or is

otherwise erroneous or unjust. After the appearance of the parties and presumably after hearing them, the learned District Judge passed an order

dismissing the application observing that there was no question of law in the case. He stated:

I have gone through the judgment and the other material papers, and I am satisfied that the case rested purely on facts. As such I am of the opinion

that the Petitioner is not entitled to the permission sought for.

The matter accordingly comes before this Court for decision of the question of what may be described as one of jurisdiction, that is, whether

after having issued notice to the Respondent, the Court, before which the appeal memorandum is filed, can proceed to reject the application, not

on the question of pauperism but for the reason that the decision is not contrary to law, or erroneous or unjust.

To our minds, Order XLIV, Rule 1 (2) it perfectly clear and it does not appear to us to be capable of admitting any discussion upon what is

expected of the Court before which the appeal memorandum is filed. It says thus:

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

persual 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.

The rule does not speak of the issue of a notice to the Respondent nor is the Respondent entitled under this rule to present any arguments even if

he chooses to appear without notice. For, if the Respondent should so appear and he heard upon a question, which has to be decided by the

Court, it should be obvious that it would be really a hearing of the appeal upon the merits as the Respondent would certainly seek to support the

judgment of the Court below. The rule accordingly directs that only the Applicant or his pleader should be heard in order that he may make out a

point which would justify the admission of the appeal and the appellate Court is also enjoined to decide whether, upon a perusal of the records, it

appears that the decree is contrary to law or to some usage having the force of law, or is otherwise erroneous or unjust. The rule thus places an

obligation squarely only upon the shoulders of the Applicant and of the Court and no other party is permitted by the rule to intervene at this stage.

For, as we have already pointed out, if the Respondent should be heard, he would certainly be in the position of a person seeking to support the

judgment or decree appealed from, that is arguing the appeal virtually on its merits even before the admission of the appeal.

If so much is clear, we find ample authority for this position in several decisions of this Court. They have all been referred to by our learned

brother, Ramaprasada Rao J. The earliest is Somasundaram Chettiar v. Arunachalam Chettiar (1932) I.L.R Mad. 982. What happened in that

case was that at the time the appeal petition was posted for hearing under Order XLIV, Rule 1 (2), the Respondent to whom notice of enquiry into

the pauperism alone had been issued, urged that he had a right to be heard upon the question whether the appeal petition itself should be admitted

or not. Such a right in the Respondent was expressly negatived by the learned Judges. They also pointed out that solely for the reason, that the

notice was issued in the appropriate form under the Code it could not be interpreted in such a way as to enlarge the scope of Rule 1 (2) of Order

XLIV.

This decision has been followed in Balaram Chowdhari and Another Vs. Harikrishna Chowdhari and Others, . In Nagarattamma v. Nagayya

(1932) 65 M.L.J. 362 another learned single Judge of this Court expressed himself in a like manner, though the earlier decision in Somasundaram

Chettiar v. Arunachalam Chettiar I.L.R (1932) Mad. 982 does not appear to have been brought to his notice.

As these decisions cited above and noticed by our learned brother Ramaprasada Rao J., amply show, it has been the consistent practice of this

Court, for several decades in the past, not to issue any notice to the Respondent at the stage when the appeal petition in forma pauvperis is heard

for purpose of admission.

Two judgments of single Judges of this Court, referred to by our learned brother in the referring judgment, apparently took a slightly different

view. In Mutturi Suryanarayanamurty Vs. Karumuri Nagachandramowli, , Horwill J., thought that if the Court of appeal had not really considered

the question under Order XLIV, Rule 1(2), the mere fact that notice to the Respondent had been issued would not preclude it from proceeding to

do so. But the learned Judge stated that an appeal should not be admitted under that provision until the Judge is satisfied that the decree of the

Court appealed against is contrary to law or is otherwise erroneous or unjust. Clearly, the learned Judge interpreted the rule in the same maimer as

we have done in holding that it is the primary duty of the Judge to decide the question of admission of the appeal in the light of the rule.

In a later decision, S. Sundaram Iyer Vs. Swaminatha Pillai and Others, , Ganapatia Pillai J., while conceding that it is the duty of the Judge to

satisfy himself that the decree is illegal or contrary to law before making up his mind to issue notice to the Respondent, added:

But, if the learned Judge has committed an error in issuing notice without performing the duty imposed upon him under Order 44, Rule 1 (2) I do

not find any reason for holding that he had no jurisdiction to correct his own error.

What this decision appears to indicate is that if the Court in which the appeal is sought to be filed has not perused the records but has

nevertheless issued notice to the Respondent, it would be open to that Court later to peruse the records and come to the requisite conclusion under

that provision and reject the application despite the issuance of notice to the Respondent. Assuming that this decision does not run counter to the

line of cases we have referred to, it obviously hinges upon a peculiar feature, namely, that the Judge had by inadvertence issued notice to the

Respondent and had not performed the duty required of him under Order XLIV, Rule 1 (2). It does not appear to us that this decision can be

permitted to run against the trend of the earlier decisions, which have taken a categorical view in the matter.

The fact that the Court issues a notice to the Respondent can normally only mean that the Court is unable to make up its mind, on a perusal of

the records, whether the decree sought to be appealed against, satisfies the requirements of Order XLIV, Rule 1 (2), and if that is so, that would

clearly be a confession by the learned appellate Judge that the matter is of sufficient substance to be heard after notice to the Respondent, that is,

that it merits admission. We assume that Judges perform the functions required of them under the law in proper form and the natural conclusion that

one can draw from the fact that a notice has been issued to the Respondent would, therefore, be that the appeal itself was intended to be admitted

by the Judge. It seems to us, accordingly, that when that has been done, the Judge can have no possible occasion for rescinding the order and have

second thoughts on the question of the admissibility of the appeal. We, therefore, answer the question referred to us in the negative.