MT RAM KAILASH KUNWARI Vs. LISHWAR SARAN

JUDGEMENT

(1.) This is an application of an unsuccessful plaintiff to appeal as a pauper. She was allowed to sue as a pauper in the Court below. By our order of 5 September 1938 we stated: We have gone through the judgment of the Court below and the application for leave to appeal as a pauper. We consider that it has been established that the case does come within the provisions of the order of pauper appeals. Accordingly, we direct that notice should issue to the opposite party to show cause why this application should not be allowed. The notice will be solely on the question as to whether the appellant is or is not a pauper, and notice was also to issue to learned Government Advocate. Today the Standing Counsel for Government states that he does not desire to oppose the application. In fact, under the provisions of Order 44, Rule 2, no notice need have been issued. Mr. Baleshwari Prasad for the respondents has objected to the previous order and claims that he is entitled to argue on the merits of the proposed appeal and to show that it does not come under the proviso to Order 44, Rule 1. He refers for this proposition to a Pull Bench ruling Mt. Powdhari V/s. Mt. Ram Sanwari shows: By the order issuing notice the Division Bench did not express any opinion as regards the question whether the decree appealed from is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust.

(2.) The Full Bench decided that, under these circumstances, the mere issue of notice did not preclude the Bench hearing the matter after the issue of notice from considering the question whether the decree appealed from is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust. On p. 965 the Full Bench further observed: We do not of course mean to lay down that the Court is bound to issue notice to the opposite party, nor do we lay down that once notice has been issued, the Court is compelled to hear the opposite party and cannot change its mind and review its previous order under Section 161, Civil P.C.

(3.) The Pull Bench therefore does not support the proposition advanced by Mr. Baleshwari Prasad. Mr. Baleshwari Prasad however points out that the book of rules framed by this High Court has an amendment to this Order 44, Rule 1 as follows: Provided further that no application under this rule shall be allowed unless a notice of the application has been given to the proposed respondents.