MT SHAHZADI BEGAM Vs. ALAKH NATH

JUDGEMENT

(1.) The circumstances from which this case has arisen have been described in my note of 7 December 1932. An application for leave to appeal in forma pauperis under Order 44, Rule 1 was presented in Court on 2 May, 1932 and was listed on 10 May 1932 with an office note to the effect that the application was 58 days beyond time. The order passed by me was: As the application hag not been made within the period of limitation, it must be and is rejected.

(2.) The period of limitation prescribed by Art. 170, Schedule 1, Limitation Act, for the presentation of an application for leave to appeal as a pauper is 30 days and the application in this case was presented 88 days after the date of the decree appealed from. The question that I have to decide is whether what was rejected on 10 May 1932 was an application for leave to appeal as a pauper, or merely a motion to admit an application for leave to appeal as a pauper. It has been pointed out that as a single Judge I had no jurisdiction to reject an application for leave to appeal as a pauper because under Clause 10, Rule 1 of the Rules of the Court, such an application can be disposed of by a Single Judge only when the appeal would be within the jurisdiction of a single Judge, and this was not the case here. If my order of rejection was passed without jurisdiction, then the effect would be that the motion or the application, whichever it be, was not rejected, and must be still held to be pending, and I am therefore in a position to hear an application which has since been filed, under Section 5, Limitation Act. The preliminary objection of Mr. Pathak is that what was rejected was a motion to admit an application and not the application itself, and as a Single Judge has jurisdiction under Clause 12, Rule 1 to dispose of such a motion the order rejecting it was passed with jurisdiction, and the result that followed was that after the order of rejection no appeal was pending, and consequently the application under Section 5, Limitation Act, cannot be heard.

(3.) I think there can be no doubt that a distinction has to be made between a motion to admit an application and the application itself. This distinction is indeed expressed in Clause (9), and Clause (12), Rule 1, of the High Court Rules. In Clause (12) it is shown that a Single Judge can dispose of a motion to admit an application, but he can only dispose of the application itself in certain specified cases, namely, in cases where if it was a second appeal, it would be within the jurisdiction of a Single Judge. Similarly under Rule 9, Chap. 1, the Registrar has authority to deal with a motion for the admission of a civil appeal; but he must submit it for the orders of a Judge if it appears to him to be barred by limitation. Mr. Pathak's argument is that in the present case there was a motion to admit an application which was presented not to the Registrar but to me, and that as it was reported to be barred by limitation, it was properly rejected just as I should have properly rejected a motion to admit a civil appeal that was reported to be barred by limitation. Mr. Gour has pointed out that the rejection of the application does not mean the rejection of the appeal and this is I think perfectly correct. If the application had been rejected under the provision to Rule 1, Order 44, the effect would not have been the rejection or dismissal of the memorandum of appeal itself. When however an application is rejected under the provision to Rule 1, Order 44 what is rejected is an application that has already been admitted, that is to say, it has already passed through the preliminary stage which according to Mr. Pathak's argument every application has to pass through. Rule 1, Order 44 provides that any person 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.