Poulose Mathai vs A.J. Joseph and Others

Raghavan, C.J.—The petitioner filed two appeals before this Court in forma pauperis; and the appeals were dismissed by us. He has now filed a petition to review the said judgment; and has filed this miscellaneous petition along with the review petition for leave to file the review petition in forma pauperis. The question we have to consider is whether such a petition is maintainable.

Since no counsel appeared for the petitioner (the petitioner appearing in person), we requested Sri V. Parame-swara Menon to appear amicus curiae. We also issued notice to the Government Pleader, since there was no decision of our Court on the point. Sri Parameswara Menon brought to our notice almost all the relevant decisions touching the question. We do not think we need refer to all of them; and we shall be content by referring to those which have a direct bearing on the question.

In Ma Nyein Yone v. P D. Patel. AIR 1930 Ran 280 a Division Bench of the Rangoon High Court had to consider a similar case. The Division Bench held that, since the CPC provided separately for suits, appeals, applications in revision and applications for review and also expressly provided that in certain circumstances leave to litigate in forma pauperis might be given in the case of suits and appeals and since there was no provision similar for cases of revision and review, an application for leave to file a review petition in forma pauperis was incompetent. This judgment contains no elaborate discussion on the question, the sole reasoning being that, since separate provisions are made for suits, appeals, revisions and reviews and since separate provisions are also made for leave to file a suit and leave to file an appeal in forma pauperis regarding revision and review, such applications are not in the contemplation of the legislature. This is certainly one way of lookins at the question. It is now well established that an appeal is a continuation of the suit. In spite of that, separate provision has been made in Order 44 for leave to appeal in forma pauperis. In the light of this, even if the review petition is construed as a continuation of the appeal, still, in the absence of a specific provision for leave to file a petition for review in forma pauperis. such an application for leave is not maintainable. This is the reasoning of the Rangoon High Court

There is another decision of the Madras High Court by a Single Judge in In re In Re: U. Ananthakrishna Baliga, . where the question considered was whether the defendant in a suit might be allowed to prosecute his defence in forma pauperis. Abdur Rah-man, J. considered this question and observed that there was nothing in O. 33 of the Code of Civil Procedure, which could help a defendant in asking for the indulgence granted to a person who wished to file a suit in forma pauperis except in a case where the defendant might be, for the purpose of the suit, regarded as a plaintiff. The learned Judge referred to an unreported decision of the Madras High Court by Curgenven, J., which held that, in a case, where a person filed an appeal paying full Court-fee but later applied for leave to file a review petition in forma pauperis. the prayer could be granted. But Abdur Rahman. J. distinguished this case and held that the defendant in a suit should not be allowed to prosecute his defence in forma pauperis unless it could be said that the defendant in the particular circumstances of the case was a plaintiff. We agree that the unreported decision of Cur-genven, J. is not an authority in a case like the one before Abdur Rahman. J.

On the other hand, we have a few decisions, mainly of the Calcutta High Court and of the Andhra Pradesh High Court In Serajgunj Co-operative Urban Bank, Ltd. and Another Vs. Bindhubashini Dassya and Others, . a Division Bench of the Calcutta High Court held that a petition for review of a judgment passed on appeal must be considered to be a continuation of the appeal itself, which was in forma pauperis. and therefore, on grounds both of sound reason and obvious justice, such a petition must be held to be maintainable without payment of court-fee. The reasoning of the Division Bench, as we have indicated, was that the review petition was a continuation of the appeal; and that, if the appellant was allowed to appeal in forma pauperis, it was only reasonable, and was necessary in the interests of justice, that he should be allowed to file a petition for review of the judgment in forma pauperis. Sri Parameshwara Menon brought to our notice the decision of the Orissa High Court in Mst. Kainta Meherani Vs. Damru Meher and Others, by G. K. Misra, J. We do not think we need go into this decision in any detail because of the very recent decision of the Andhra Pradesh High Court by a Division Bench in Ananta Reddy v. Vasu-dey Reddy, ( 1971 1 AWR 282 which has discussed most of the decisions touching the question. This Division Bench has considered the decisions we have already mentioned (of the Rangoon High Court of the Calcutta High Court, etc.) and a few other decisions of other High Courts as well and has held that, in a case like the one before us, the petitioner should be allowed to file a review petition in forma pauperis. We are inclined to accept the reasoning in this decision. This decision has also referred to the unrepoited decision of Curgenven J., referred to by Abdur Rahman J., and has preferred to follow the reasoning in the said decision. We feel that the reasoning in these decisions is better than the reasoning in the Rangoon decision. The reasoning in these decisions is more in accord with interests of justice than the reasoning in the Rangoon decision. Therefore, the petitioner is entitled to file a petition in forma pauperis for review of the judgment in a case like this, where he was allowed to appeal in forma pauperis: in other words, such a petition is maintainable in law : to such a petition, to put it differently. Order 44 of the CPC must apply.

Now arises the question whether the present application for leave should be allowed. Order 44 of the CPC provides for applications for leave to appeal in forma pauperis and Sub-rule (2) of Rule 1 states that the appellate Court, after fixing a day for hearing the application 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". This shows that, though a person is entitled to file an application for leave to appeal in forma pauperis. such an application will be allowed only if the conditions mentioned above are satis-Eied. The same principle must apply in the case of an application for leave to file a review petition in forma pauperis. Order 47 of the Code provides for review petitions; and that provision lays down, inter alia, that a review petition may be allowed if there is some mistake or error apparent on the face of the record or for any other sufficient reason. That being the scope of the petition for review itself, unless there is some error or mistake apparent on the face of the record or there is any other sufficient reason, a petition for review cannot be admitted --more so an application for leave to file a petition for review in forma pauperis.

The petitioner filed an original petition for grant of probate of a will (Ex. P-1) alleged to have been executed by the late Fr. C. K. Mattom on 14th November 1966 ; this petition was numbered subsequently as an original suit. The first respondent filed another original petition for probate of an earlier will (Ex. D-2) said to have been executed by the same Fr. Mattom on 1st October 1955. Both the matters were heard together; and the lower Court held that Ex. P-l was .a forgery and granted probate of Ex. D-2, the earlier will. In the appeals before us. these decisions were challenged by the petitioner; and after considering the entire evidence and circumstances, we came to the conclusion that the decisions of the lower Court were correct. Though elaborate grounds have been raised in the petition for review, none of them discloses that there Is a mistake or error apparent on the face of the record. No other sufficient reason is also indicated to admit the review petition. In such circumstances, the application for leave to file a review petition in forma pauperis cannot be admitted.

The petition is rejected.