RAJAMMAL Vs. GSPARTHASARATHI AYYENGAR

JUDGEMENT

(1.) Plaintiff 1, who is the appellant here and was the appellant in the lower appellate Court, made an application for leave to appeal as a pauper. The application was presented on 10th June 1929, the last day of the period of limitation for appealing. She did not file a copy of the decree against which she sought to appeal until 3 September 1929. The District Judge gave leave to appeal in forma pauperis on 17 December 1929, and on the same occasion the delay in presenting copies of the decree and judgment was excused. The lower appellate Court, when the appeal came on for hearing, upheld the preliminary objection that the appeal was out of time and that, inasmuch as no copy of the decree appealed from had been produced until after the expiry of the period of limitation, there was no valid presentation of the appeal.

(2.) Undoubtedly it is a condition required by Order 41, Rule 1, Civil P.C., to the validity of an appeal that the memorandum of appeal presented by the appellant shall be accompanied by a copy of the decree appealed from and (unless the appellate Court dispenses therewith) a copy of the judgment on which it is founded; and it follows that no appeal can be entertained by a Court without the requisites for preferring it having been complied with. The question however is whether the procedure laid down in Order 41, Rule 1, Civil P.C., is to be followed where the party wishes to appeal in forma pauperis. Order 44, Civil P.C., governs such appeals. Rule 1 of this order, as was observed in the Full Bench case in Shahzadi Begam V/s. Alakh Nath 1935 ALJ 681, does not require that the applicant for leave to appeal as a pauper shall file copies of the decree and judgment though he may do so. But the point was not decided by the Full Bench. What Rule 1, Order 44, Civil P.C. says is: Any person entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of appeal, may present an application accompanied by a memorandum of appeal, and 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.

(3.) If there was nothing else in the rule one would be justified in saying that the rule contemplates what it says, that the applicant has only to present an application for leave to sue as a pauper with the memorandum of appeal and satisfy the Court that he was a pauper. But then comes the proviso to that rule which says: Provided that the Court shall 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.