VELAYUDHAM SUBBAYA NADAR Vs. KALAMSETTI ANJANEYALU

JUDGEMENT

(1.) The short question for decision in these revision petitions is whether an application for leave to appeal in forma pauperis can be rejected without hearing the applicant or giving him an opportunity of being heard. In each case, the Court below rejected the application with-out hearing the petitioner and the legality of this procedure is challenged before me. It is not disputed that an application under Order 44, Rule 1, Civil P.C., is a judicial proceeding and the order made therein should be based upon the exercise of a judicial discretion exercised on a proper consideration of the relevant material. A Full Bench of this Court has expressed the opinion, approving Appasami Pillai V/s. Somasundaram Mudaliar ( 03) 26 Mad. 437 that an order rejecting an application for leave to appeal in forma pauperis is an appealable judgment under Clause 15 of the Letters Patent : see Tuljaram Rao v. Alagappa Chettiar ( 12) 35 Mad. 1 at pp. 9 & 17. It is therefore difficult to see how such a proceeding can be disposed of except in conformity with the fundamental principle in all judicial procedure that no order should be made without notice to the parties who will be prejudicially affected by the order and without affording them a reasonable opportunity of being heard. It is satisfactory to note that the practice of the Courts in this Presidency in dealing with applications of this kind has been in conformity with this principle.

(2.) The respondent relies on a recent decision of Wadsworth J. in Kanthimathi Ammal V/s. Ganesa Iyer ( 36) 23 A.I.R. 1936 Mad. 101 following an earlier decision of Sadasiva Iyer J., in In re Paramasivam Pillai ( 16) 3 A.I.R. 1916 Mad. 636. With all respect I am unable to agree with these decisions. In the latter case, the learned Judge understands perusal in the proviso to Order 44, Rule 1 to mean perusal without being supplemented by argument on petitioner's side and he quotes in support of his conclusion a passage from the judgment of Jenkins C.J. in Sakhubai V/s. Ganpat ( 04) 28 Bom. 451: It is to be noticed that the Court must come to its conclusion upon a perusal only of the application, the judgment and the decree. This proviso is apt to be overlooked, etc.

(3.) The Point now under consideration did not arise in the Bombay case, Sakhubai V/s. Ganpat ( 04) 28 Bom. 451, where the learned Judge was merely pointing out the desirability of the Court recording briefly the reasons for granting leave, and it is by no means clear that "only" in the passage quoted was meant to exclude a hearing of the petitioner and not material other than the application, the judgment and the decree. In the other case, Kanthimathi Ammal V/s. Ganesa Iyer ( 36) 23 A.I.R. 1936 Mad. 101, the learned Judge notes the prevailing practice of hearing the applicant in such cases, but finds no warrant for it in Order 44, Rule 1, observing that, the proviso to that rule contains no indication that it is either necessary or desirable for the Judge to hear the party before passing orders of rejection.