S NAGALAKSHMAMMA Vs. STATE
HIGH COURT OF ANDHRA PRADESH
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(1.) In this review application the short point that arises for consideration is that when once an application filed to grant leave to prefer a second appeal in forma paupetis is allowed and leave was granted, later when the case is posted for admission whether it is open to dismiss it in limine on the ground that no question of law is involved and the determination of the, case depends upon question of fact which were found against the appellant by both the lower courts.
(2.) The application for leave to appeal informa pauperis was ordered by my learned brother, Mr, Justice Sambasivarao. Subsequently when the second appeal was posted before me for admission, I dismissed it without admitting it on the ground that the determination of the case turns ouly upon questions of fact which were concurrently found against the petitioner by both the lower courts. Subsequently this review petition is filed on the ground that once leave was granted to file a second appeal informa pauperis thefore this court has no jurisdiction to dismiss the appeal in limine on the ground that only questions of fact are involved.
(3.) The procedure to be followed by a Court on presenting an application by any person entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of appeal, is laid down in Order 44 Rule 1 (2) of the Code of Civil Procedure. It is convenient to extract that rule here :
"Order 44 Rule 1 (1) (2) the appellate court.a fter fixing a day for hearing the appellant or his pleader and hearing him a acordingly if he appears on the day, and upon a perusal of the application and of the judgment and decree appealed from shall reject the application unless it seems reason to think that the decree is contrary to law or to tome usage having the force of law, or is otherwise erroneous or unjust." Rule 2 of order 44 deals with inguiry into pauperism. Before a person is entitled to prefer an appeal informa pauperis two things are necessary: One, he shall be a pauper namely, who does not own sufficient property to enable him to pay the court-fee payable on the memorandum of grounds of appeal, and two, the decree appealed from is contrary to law or to some usage having the force of law, or is otherwise erroneous or unjust. When the second condition is satisfied only there will be any necessity for inquiry into the pauperism of the applicant. If the second condition is not satisfied leave cannot be granted even if the applicant is a pauper and not in a position to pay court fee, Therefore when an application for granting leave to file the appeal infroma pauperis is filad, in the first instant, it is necessary for the court, after hearing the applicant or his counsel and perusing the judgment and decree appealed from, to consider whether the decree is contrary to law or to some usage having the force of law, or is otherwise erroneous or unjust and if the court is satified about that condtion it should issue notice to the Government Pleader and respondent for the purpose of inquiring into the pauperism of the applicant. In the first stage no inquiry is envisaged under 44 Rule 1(2) which means there is no need to give notice to the opposite side to enable him to make the representation. At the stage it is only after bearing the applicant or his pleader and after perusing the judgment and decree appealed from the court should come to a conclusion whether the decree is contrary to law etc , or not. Under Order 44 Rule (2) only inquiry to envisage in order to find out the pauperism of the applicant, which means that an opportunity should be given to the opposite pary also to represent his views and adduce evidence before coming to a conclusion with regard to the permission of the applicant.;
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