SECY OF STATE Vs. MTSON KALI

JUDGEMENT

(1.) This is a civil revision under Section 115, Civil P.C., which has arisen in the following circumstances: The respondent, who is unfortunately unrepresented before us, brought a suit in forma pauperis in the Court of the Munsif of Jaunpur for certain reliefs. She having failed there filed an appeal before the learned Subordinate Judge of Jaunpur. The learned Subordinate Judge thought that the appeal was not liable to be rejected under the proviso to Rule 1, Order 44, Civil P.C., and being of that opinion ordered notice to issue to the Government. Pleader and to the respondent. When however the Government Pleader appeared, he wanted to contend that the appeal was liable to be rejected in view of the proviso to Rule 1, Order 44. The learned Subordinate Judge thought that the fact that he had allowed notice to issue precluded him from considering the question again. Accordingly he passed the following order: The application to appeal as pauper is allowed and notice should be issued to the respondents in accordance with law.

(2.) The learned Government Advocate has filed this revision on behalf of the Secretary of State for India in Council. By an oversight, evidently of the office of the learned Government Advocate the heading of the application contains the words "through Phunan Singh...defendant" in the case. The learned Government Advocate informs us that he filed the revision on behalf of the Secretary of State and not on behalf of the defendant. We have accordingly directed that the heading of the petition of revision may be amended. There can be no doubt that an application in revision is maintainable. There has been a case decided so far as the Government is concerned. By allowing the plaintiff to appeal as a pauper without hearing the Government Pleader, the Court; has decided so, far as the Secretary of State is concerned, that the Secretary of State has no locus standi in opposing the presentation of the appeal in forma pauperis and no court-fee need be paid.

(3.) On the merits we think that the revision should succeed. As we read Order 44, Rule 1 it means this: When a person wants to appeal as a pauper, the first thing that he is to do is to present an application for that purpose. The Court has then to scrutinize the application as laid down in the proviso to Rule 1. It has to see whether the decree is contrary to law or to some usage having the force of law, or is otherwise erroneous or unjust. If the Court finds that the decree does not contravene any of these rules, then the Court must reject the application for permission to sue as a pauper. On the other hand, if the Court finds that prima facie there is no reason to reject the application, it is to issue notice to the Government Pleader and also to the respondent to show cause why the application should not be granted. The Civil Procedure Code, in Appendix G, Form No. 11, prescribes how the notice is to be worded. It is true that Rule 1 does not in so many terms say that the Court is to issue notice to the Government Pleader or to the respondent, but para. 1, Rule 1 has the following words: Subject in all matters...to the provision relating to suits by paupers in so far as those provisions are applicable.