KRISHNA BHATTA Vs. ANANTA BHATTA

JUDGEMENT

(1.) This is an application by the plaintiff, who had been allowed to institute the suit in forma pauperis, for further leave to appeal as pauper, from the decree dismissing his suit. Notice on this application was ordered by a learned Judge of this court on 23-6-1959; and the respondent and the Government Pleader have entered appearance is response thereto. The question now is whether, at this stage, the respondent is to be allowed to contend that the decree is not contrary to law or to some usage having the force of law and is not otherwise erroneous or unjust and therefore the application should be refused.

(2.) O.44, R.1, C. P. C. provides:

(3.) Sub clause (2) makes it the duty of the court to peruse the application and the judgment and decree appealed from and to hear the applicant or his pleader if he appears on the day fixed for hearing him, and to reject the application if it does not see 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 other words, unless the court, on a perusal of the application and of the judgment and decree appealed from and hearing the applicant or his pleader, sees no 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, it is bound to reject the application. So the very issuance of notice after hearing the applicant's counsel tantamounts to a record that the conditions requisite for the issue of notice were present in the instant case, namely, that the court saw 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. It is not open to the court to reconsider the matter at a subsequent stage and say that the decree is correct and just and therefore no notice ought to have been issued on the application or that the application should have been rejected at the first stage. It is significant that at the stage of ordering notice the court is only to peruse the application and the judgment and decree appealed from and to hear the applicant or his pleader. Even the rest of the record of the case ought not to be looked into; nor is the respondent to be heard on the matter. The expression "after fixing a day for hearing the applicant or his pleader and hearing him accordingly if he appears on that day" shows that only the applicant or his pleader is to be heard. In Order XVIII, the expression used is 'hearing of the suit'; but the expression in Order XLIV Rule, I is not ''hearing the application', but "hearing the applicant or his pleader". The particularity of the expression here indicates that the respondent has no locus standi to oppose the application when the same is being considered under R.1 of Order XLIVI, C.P.C. Even if the respondent is present, he is not to be called upon to show that the decree is correct and just.