NAGALAKAHMAMMA Vs. IN RE

JUDGEMENT

(1.) pauper is granted:Second Appeal posted for In this review application the short point that arises for consideration is that when once an application filed to grant leave to prefer a scoond appeal in forma paupet is 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. The application for leave to appeal informa pauperis was ordered by roy learaed brother, Mr, Justice Sambasivarao. Subsequently when toe secand appeal was posted before me for admission, I dismissed it without admitties 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 paupeis the fore this court has no jurisdiction to dismiss the appeal in limine on the ground thatonly questions of fact are involved. 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:

(2.) In support of this argument the learned counsel has placed reliance oa some reported cases which may be mentioned now. In the decision Nagarathamma v. Nagayya] what happened is on 12th October, 1931, the District Court ordered notice to Government pleader an to the respondent on the pauper application Notices were accordingly taken. The Government pleader did not oppose the application, but various respondents filed counters. Subsequently the case came on hearing before successor Dt. Judge on 11 th March, 1932 and he dismissed the application. The ground stated for so dismissing it was that the judgment and decree did not comply with the terms of the proviso to Order 44 Rule 1 of the Code of Civil Procedure (it is, the same as the present order 44 Rule 1 (2) C.P.C). Gurjeevan J. who decided that case held that :

(3.) The Patna High Court also took a similar view in the decisions Raghuaadbprasad v. M. L. Rampiari Kuer]2 and Mt. Bibi v. Sogga Radls Kishan]3. It was held in these cases that there an application for leave to appeal as a pauper is admitted, it has to be presumed that the court admitting the application saw good reason to think that the decree was contrary to law to some usage having the force of law and the respondent cannot, at the time of showing cause against pauperism argue that there was no such question involved in the case. Similarly in the decision Krishna Dusts v. Gantha Dath the Kerala High Court held that: