SWAMINATHA PILLAI Vs. BALASUBRAHMANYA UDAYAR

JUDGEMENT

(1.) The question for consideration In these two petitions is whether an order passed by the, District Judge, Tiruchirapalli, under Order 44, Rule 1, of the Civil Procedure Code, rejecting two petitions to entertain pauper appeals, against the judgments and decrees in O. S. Nos. 37 and 40 of 1949 on the file of the A.D.M., Tiruchirapalli, after bearing the counsel for the petitioner, can be interfered with and set aside in revision simply because the points urged, by the learned counsel who appeared for this petitioner in the two O. Ps, are not set out and discussed, and the order simply runs as follows: "I see no reason for 'thinking that the decision of the lower Court is contrary to law or is otherwise erroneous. Petition rejected."

(2.) Mr. Vydianatha Aiyar, for the petitioner in both the civil revision petitions, relied on the ruling In 'Chennamma in re: 53 Mad 245. There, it was held by a Bench of this Court, consisting of Ven-katasubba Rao and Madhavan Nair, JJ., that it was not enough if the order rejecting the petition to' file the pauper appeal simply quoted the words of 'the proviso to Order 44. Rule 1, C.P.C., and that an applicant should be granted leave to file a pauper appeal in case' he showed that he had 'prima facie' ft good case. But, here, the fact remains that the learned District Judges heard the counsel for the petitioner, and came to the conclusion that the petitions should be rejected, thereby showing that in his opinion the petitioner had 'prima facie no good case in either of the proposed appeals.

(3.) It has been held by a later Bench of this Court, in 'Narayana Rao v. Veerayya', 56 Mad 323, that the proviso to Order 44, Rule 1, is mandatory and that it only contemplates a perusal of the application, the judgment and the decree by the appellate Judge and nothing else, and that unless in the opinion of the appellate Judge the decree is contrary to law or otherwise erroneous or unjust he-is bound to dismiss the application; and that Order 44 Rule 1, C.P.C., does not say that the Court shall not reject the application If the appeal raises a substantial question of law or if the appellant has 'prima facie' a good case. The ruling in 'Chennamma, In re: 53 Mad 245, especially as a still later followed, as being in conflict with the ruling is 'Sabubai v. Ganpat', 28 Bom 451, 'Rajendra Prasad v. Gopal Prasad', 4 Pat 67 and 'Maung Tha Din v. Daw Paw', AIR (12) 1925 Rang 249. With very-great respect, I prefer to follow the later Bench ruling in 'Narayana Rao v. Veerayya', 56 Mad 323, in preference to the" earlier Bench ruling in 'Chennamma' In re; 53 Mad 245 especially as a still later Bench of this Court has held in 'Subba Rao v. Tata Reddi', ILR (1942) Mad 746, that it is not even necessary for the appellate Court to hear the petitioner in a pauper appeal before rejecting the appeal under Order 44, Rule 1, C.P.C., and Wadsworth,. J., has held in 'Kanthimathl Ammal v. Ganesa Aiyar', 59 Mad 805, that the Court does not act Illegally if it disposes of an application for leave to appeal 'in forma pauperis' in a summary manner without hearing the applicant, and even in Chambers, and without giving him time for payment of the deficient court-fee after rejection of the petition. I am satisfied that the mandatory provisions of the proviso of Order 44, Rule i, C.P.C., will allow only of the interpretation put upon it In the case in 'Narayana Rao v. Veerayya', 56 Mad 323, 'Kan-thimathi Ammal v. Ganesa Aiyar', 59 Mad 805, and 'Subba Rao v. Tata Reddi', ILR (1942) Mad 746, and that the over-liberal interpretation put on it In 'Chennamma In re 53 Mad 245, is not to be preferred to the stricter interpretation In these rulings.