CHAKI JAKERIA ABDULLA Vs. MEMON ISMAIL UMAR

JUDGEMENT

(1.) A suit allowed to be filed as a suit in forma pauperis was dismissed by the trial Court on the ground of limitation. In appeal also the same view about limitation was taken and therefore the appellate Court held that there is nothing to show that the decree of the trial Court is contrary to law or some usage having the force of law or is otherwise erroneous or unjust. Therefore, the appellate Court refused to grant permission to file the appeal in forma pauperis.

(2.) In revision it is contended that having admitted the application for permission to file the appeal in forma pauperis and having started the inquiry into pauperism under the proviso to Sub-rule (1) of Rule 2 of Order 44, Civil Procedure Code, it was not open to the appellate Court to hold that the decree is not contrary to law etc.

(3.) The scheme of Order 44, Civil Procedure Code is like this: Sub-rule (1) of Rule 1 reads as under:- "Any person entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of appeal, 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. Sub-rule (2) of Rule 1 reads as follows:-- "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 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 is otherwise erroneous or unjust" Marginal note to Sub-rule (2) reads thus:-- "Procedure on application for admission of appeal" Rule 2 relates to the inquiry into pauperism. Sub-rule (1) therefore applies subject to the provisions relating to suits by paupers contained in Order 33, Rule 5 of this order gives the grounds on which the application for permission to sue as a pauper can be rejected. Rule 6 of Order 33 reads as follows:-