LADOBI SHAIKH UMAR Vs. SHANKARLAL PANNALAL KALANTRI

JUDGEMENT

(1.) IN this appeal a preliminary point has been raised on behalf of the respondent and the facts necessary to understand the point are these.

(2.) THE respondent filed against the mother of the present appellant the suit giving rise to this appeal in order to enforce a mortgage dated March 28, 1926, In that suit the principal contention of the defendant was that the mortgage was not supported by consideration. THE other defiance was that the defendant was an agriculturist. THE learned trial Judge negative both these contentions and he proceeded to pass a decree in favor of the plaintiff for the sum of Rs. 10,000 with costs and future interest at 6 per cent. on the principal sum of Rs. 5,000. From that decree the mother of the present appellant preferred an application in this Court for leave to appeal in forma pauperis. Along with the application she also presented a memorandum of appeal. That was by civil application No.337 of 1942. On April 10, 1942, this Court made an order referring the question of the pauperism of the original appellant to the lower Court in order to find whether the applicant was a pauper. It seems that the original defendant died sometime after the papers were received in the lower Court and the lower Court reported the fact of the death of the original appellant to this Court. Subsequently an application was made by the present appellant, who is the daughter of the original defendant, being civil application No.906 of 1942, and by the application she prayed that she be substituted as the legal representative of the original appellant and that she might be allowed to appeal in forma pauperis. On November 18, 1942, Mr. Justice Wassoodew made an order upon the application in the word "granted". THE matter was referred back and the lower Court reported that the legal representative was not a pauper. When the matter came before Mr. Justice Lokur on April 5, 1943, for final disposal, he, however, held that the applicant was a pauper and accordingly he granted her leave to file the appeal in forma pauperis. Upon the memorandum of appeal which had been already presented he made an order: "admitted: Notice". It is under those circumstances that the appeal comes up before us for final disposal, and the preliminary point taken is that the order of Mr. Justice Lokur granting leave to file the appeal in forma pauperis is bad since it does not comply with the terms of the proviso to Rule 1 of Order XLIV of the Code of Civil Procedure. THE proviso to Rule 1 is in these terms: Provided that the Court shall reject the application unless, upon a perusal thereof and of the judgment and decree appealed from, 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.

(3.) IT is contended on behalf of the respondent that the Court should first sec if the requirements of the proviso to Rule 1 are satisfied. This involves the assumption that the applicant is a pauper. IT secms to us that the first thing to do is to sec if the applicant is a pauper. If he is, the next thing to do is to sec if the conditions in the proviso to Rule 1 of Order XLIV are satisfied. If the applicant is not a pauper, there is no question of compliance with the terms of the proviso. In this case the finding of Mr. Justice Lokur is that the applicant is a pauper and upon that footing leave was granted to the appellant to appeal in forma pauperis and the appeal was also admitted. The only infirmity in the order is that no reasons were given while granting the application and admitting the appeal. This does not, however, mean that the order is bad. We think it is extremely unlikely that the provisions of Order XLIV. Rule 1, were not present to the mind of a Judge of the experience of Mr. Justice Lokur. At the same time, it is, in our opinion desirable, as was pointed out by Sir Lawrence Jenkins in Sakubai's case, that the Judge while admitting a pauper appeal should express and record briefly the reasons on which leave proceeded. In this view of the matter we now proceed to dispose of the appeal upon the merits.