MT HUBRAJI Vs. BALKARAN SINGH

JUDGEMENT

(1.) This is an application for the revision of an order passed by the learned Subordinate Judge of Jaunpur, rejecting the applicant's application for leave to appeal as a pauper under Order 44, Rule 1, Civil P.C. That order was passed after notice had been issued not only to the Government Pleader but to the respondent, and the present application in revision is made on the ground that the application in the court of the Subordinate Judge could not be rejected under the proviso to Order 44, Rule 1, Civil P.C. at that stage, i.e. after the Court had had an opportunity of rejecting the application summarily, and had, instead of rejecting summarily, issued notices to the other parties concerned. The whole procedure relating to pauper appeals is set forth, in the two rules of Order 44. Rule 1 prescribes that a person who is unable to pay the requisite fee may present an application accompanied by a memorandum of appeal and may be allowed to appeal as a pauper subject in all matters...to the provisions relating to suits by paupers in so far as those provisions are applicable.

(2.) But the proviso shows that the court must 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 therefore clear that the court must in considering these applications always be mindful of the provisions relating to suits and be ready to apply them to applications for leave to appeal if they are capable of application. Special stress is laid in Rule 1 on the provisions relating to the presentation of the application, and Order 33, Rule 3 (which relates to suits) provides that the application shall be presented to the Court by the applicant in person unless he is exempted, and it is clear therefore that this provision will also apply to the presentation of an application for leave to appeal. Order 33 then goes on to, show that the court may examine the applicant regarding the merits of the claim and the property of the applicant (Rule 4) and in Rule 5 are enumerated the reasons for which the court may reject an application for permission to sue as a pauper . If the application is not thus summarily rejected the court must issue notices to the opposite party and to the Government Pleader for receiving such evidence as the applicant may adduce in proof of his pauperism and for hearing any evidence which may be adduced in disproof thereof.