BALARAM CHOWDHARI Vs. HARIKRISHNA CHOWDHARI

JUDGEMENT

(1.) THIS Civil Revision Petition deals with an application for leave to appeal as a pauper under Order 44, Rule 1, Civil P.C. The learned District Judge takes the view that his predecessor in ordering notice to issue may have intended to leave open the question as to whether or not after a perusal of the decree appealed from the Court had reason to think that it was contrary to law or to some usage having the force of law or otherwise erroneous or unjust-I am using here the words which appear in the proviso to Order 44, Rule 1-and he proceeds to hold that there is no reason so to think, and as a result the applicant was not allowed to appeal as a pauper. He says that "whatever may be the presumption the fact is that in pauper applications as in appeals notice goes as a matter of routine. There is nothing in Order 44, Rule 1 prohibiting the consideration of this point after notice has gone." I do not understand why the learned District Judge says that notice goes as a matter of routine to the respondent. That seems to me to be going contrary to the proviso to Order 44, Rule 1, Civil P.C. The practice of this Court and so far as I know of every other Court is that when an application such as this is presented, as a condition precedent to the issue of notice the Court has to have reason to think that the decree is contrary to law, etc. If the Court, after a perusal of the judgment, has not got reason to think so, then the Court is bound to reject the application; and it is only when that condition is satisfied that any notice goes at all to the respondent, and that is the notice on the question of pauperism and upon nothing else. As Ramesam, J. points out in Somasundaram Chettiar, V/s. Arunachalam Chettiar 1932 55 Mad 982: Undoubtedly the practice of this Court has been for at least the last 32 years, during which period I have been in touch with it, not to hear the respondent on the question whether the decree of the Court below is contrary to law or to some usage having the force of law, or is otherwise erroneous or unjust as provided for in the proviso to Order 44, Rule 1. I do not mean to say that a practice ought to be adhered to merely because it is long-standing even though we now find it to be erroneous; but I think it may be said that a long-standing practice is prima facie proof that it is really correct; for otherwise some learned Advocate of this Court would have objected to it and would have claimed to be heard.

(2.) WITH those observations I entirely agree. It is not the practice, and has not been the practice, to hear the respondent upon this question. That being so, what is implied by the issue of a notice? What is implied and what has always been intended by such an order is that the respondent is to have an opportunity of showing cause why the applicant should not appeal as a pauper and nothing else. I do not suggest-and Ramesam, J., does not do so either-that a Judge or Judges may not sometimes before deciding whether the case comes within the proviso to Order 44, Rule 1, Civil P.C., require the assistance of the respondent but such cases are rare; and, unless the order directing notice to go is qualified by some observations showing that the respondent is to be heard on the question of law, the ordinary rule, as I understand it and every body else understands it, is that the issue of notice means nothing more than that the question of pauperism is to be gone into, the Court being satisfied, that on the face of the record it does satisfy the requirements of the proviso to Order 44, Rule 1. The learned District Judge appears to understand that the practice is otherwise in the mofussil Courts. I do not think it is. But if the practice is otherwise, then all I can say is that it is not a proper practice and the sooner it is stopped the better. The issue of notice prima facie means that the only question remaining to be decided is that of pauperism. For these reasons this Civil Revision Petition must be allowed, the order of the lower Court set aside and the lower Court directed to admit the appeal subject to the enquiry on the question of pauperism. Costs of this Civil Revision Petition will be costs in the appeal.