ELIAS Vs. SIVAN PILLAI

JUDGEMENT

(1.) THE short question in this petition is whether the petitioner herein,who is the 22nd respondent in the appeal,was entitled to notice before the appellant was allowed to appeal in forma pauperis. In C.M.P.No.1830 of 1960,I granted leave to the appellant,who was allowed to sue as a pauper in the lower court,to appeal as a pauper after giving notice to the State.No notice was issued to the respondents in the proposed appeal.The 22nd respondent has filed this petition to set aside the order in C.M.P.No.1830 of 1960 on the ground that the order was passed ex -parte and that the 22 nd respondent was entitled to notice before the appellant was allowed to appeal as a pauper. There is a recent decision of this Court in Krishna Bhatta v. Anantha Bhatta 1961 K.L.T.38 wherein Madhavan Nair,J,has considered a similar question in extenso.In that case notice was issued to the respondent and he sought to op­pose the application for leave to appeal in forma pauperis .Madhavan Nair,J .,after reviewing several decisions of several High Courts,has ruled that the very issuance of a notice after hearing the applicant's counsel tantamounts to a record that the court saw reason to think that the decree was contrary to law or to some usage having the force of law or was otherwise erroneous or unjust and therefore,it is not open to the court to re -consider the matter at a subsequent stage and say that the decree is correct and just and no notice ought to have been issued at the first stage.For all the reasons given by my learned brother I agree with the opinion expressed by him. The learned counsel of the petitioner has drawn my attention to two decisions subsequent to the amendment of the Code of Civil Procedure by Act LXVI of 1956,which do not appear to have been brought to the notice of Madhavan Nair,J.Those decisions are Narsingdas v .Mulraj A.I.R.1958 Raj.133 and Mohammed -un -Nisa v. Faiyaz Ali A.I.R.1958 Punj.437.The argument of the learned advocate is that these deci­sions were passed after the amendment of the Civil Procedure Code and as such the view expressed in these decisions should prevail over the view expressed in the earlier cases,which have been followed by Madhavan Nair,J.In a recent Full Bench decision of the Calcutta High Court in Shib Krishna Das v. Panchanan Ganguly A.I.R.1961 Cal.346,these decisions have also been considered.The Calcutta Full Bench decision has held that in showing cause neither the respondent nor the Collector is entitled to show that the decree is not contrary to law or to some usage having the force of law or is otherwise erroneous or unjust under the old proviso or under the present sub -rule 2 to Order 44,rule 1.I respectfully agree with this view. I would only add a few words on one aspect of the question.Order 33 makes elaborate provisions regarding the procedure in relation to suits by paupers.Order 44,relating to pauper appeals,has only two rules.Rule 1(1)provides that a person entitled to prefer an appeal,who is unable to pay the fee,may present an application accom­panied by a memorandum of appeal,and may be allowed to appeal as a pauper,subject in all matters,including the presentation of such application,to the provisions relating to suits by paupers,in so far as those provisions are appli­cable.The learned advocate of the petitioner relies on this provision and contends that Order 44 is subject to the provisions relating to suits by paupers contained in Order 33.I would now examine how far this provision gives the respondent in a pauper appeal the right to be heard before the appellant is allowed to appeal as a pauper.Rules 5 to 7 of Order 33 may be looked into in this connection.Under rule 5 the court shall reject an application for permission to sue as a pauper,if on examination of the applicant the court finds that one of the conditions mentioned in that rule exists.If the court sees no reason to reject the application on any of those grounds mentioned in rule 5,rule 6 provides that the court shall fix a day of which notice shall be given to the opposite party and to the Government Pleader for receiving such evidence as the applicant may adduce to prove that the application is not subject to any of the prohibitions in rule 5 and also for hearing any evidence,which may be adduced to the contrary.It is under this rule that notice goes to the defendant in an application for leave to sue as a pauper.Then under rule 7 the procedure to be followed at the hearing of the application is laid down;and the court is bound to receive and consider at such hearing the evidence produced by the defendant as well.Coming to Order 44,what we find is that all the provisions contained in rules 5 to 7 of Order 33,are compressed into the provisions contained in rule 1(2)and rule 2 of the former order.Rule 1(2)provides that the appellate court,after fixing a day for hearing the applicant or his pleader and hearing him 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.The issue of a notice to the respondent is significantly absent in this sub -rule.Rule 2 relates to the inquiry into pauperism.The legislature has thought fit to enact rule 1(2)of Order 44 for appeals in the place of rules 5 to 7 of Order 33 relating to suits.When such intentional departure is made by the legislature under rule 1(2)of Order 44 I do not think it will be correct or justifiable to again apply the provisions of rule 6 of Order 33 to appeals and issue notice to the respondents.Be it noted that the provisions of Order 33 apply to appeals only in so far as those provisions are applicable and in a case where special provision is made as in rule 1(2)of Order 44 the corresponding provisions in Order 33 are no more appli­cable. Therefore,the petition has no merit and the same is dismissed.Normally I would have allowed costs also.But,since the decision of our Court has been reported only after the filing of this petition.I make no order regarding costs.