(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:
"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 some 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 fite the appeal iofroma 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 sajust 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.l (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 decres to contrary to law etc , or not. Under Order 44 Rule (2) only inquiry te envisage in order to find out the pauperism of the applicant, which that ah opportunity should be given to the opposite pary also to represent his views and adduce evidence before coming to a conclusion with resard to the permission of the applicant. It is also provided under the proviso to Order 44 Rule (2) that if tbt applicant was allowed to sue or appeal as a pauper in the court from whose actree the appeal was preferred, no further inquiry in respeet of his pauperism is necessary unless after hearing the Government pleader the court see cause to direct enquiry, What happened in the present case is in the lower court also the petitioner was allowed to appeal as a pauper. He is the plaintiff in the suit and the suit was also filed in forma pauperis. Therefore, after hearing the counsel for the petitioner, as provided under Order 44 Rule 2, the application was allowed granting leave to appeal in forma pauperis. Sri Sivaprasadarao, the learned counsel appearing for the peritioner has argued that before granting leave this court has perused the judgment and decree and satisfied itself about the condition laid down under Order 44 Rule I (2) and if that is so, the same satisfaction would be sufficient as provided under section 100 of the Code of Civil Procedure to admit the second appeal and therefore this court will not hive any further jurisdiction to re-consider the matter and refuse to admit the second appeal.
(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 :
"the very first step in dealing with an application to file an appeal informa pauperis is to peruse the records aud if necessary to reject the petition without issuing notice to any of the parties interested. The Court is not justified in issuing notice in order to make up its mind whether to reject application. Hence when once issue of notice is directed, it must be presumed tnat the court has . applied its mind to this provision and has decided not to, reject the appeal under it and the appeal should not be dismissed subsequently under the same proviso."
(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:
"the very issuance of notice to the respondent and the Government pleader "after hearing the applicant's counsel that amounts to a record that the conditions requisite for the issue of notics were present in the case, namely, that the Court saw reason to thick that the decree is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust. It is not open to the court to reconsider the matter at a subsequent stage and say that the decree is correct and just and therefore no notice ought to have been issued on the application or that the been rejected at the first stage. Even the rest of the record of application should have the case ought not to be looked into nor is the respondent to be heard on the matter. Even if the respondent is present, he is not to be called upon to show that the decree is correct and just". In a recent Bench Decision of the Madras High Court in Kanni v. Viswanatha Chettiar] it was held that a Court which entertains an application leave to appeal informa pauperis under Order 41 Rule 1 of the Civil Procedure code and issues notice to the opposite., party without rejecting it under Order 44 Rule 1 (2), cannot, after hearing ths opposite party rescind its order, to entertain the application on the ground that At that stage it is of the opinion that it ought to be rejected because the decree appealed from is not contrary to law, or to some usage having the for at of law or is otherwise erroneous or unjust. All the above decisions are the authority for the proposition that even before granting leave to prefer an appeal informa pauperis, once notice was given to the opposite party and the Government pleader after bearing the applicant or his counsel so envisaged under Order 44 Rule 1 (2), it is not competent for the court at the stage of inquiry into the pauperism of the applicant to go into that position and come to a contrary conclusion and to reject the application on the ground. The same thing may apply for the admission of the second appeal at the subsequent stagse after once leave was granted to sue as a pauper if the matters for consideration are the same both under order 44 Rule 1 (2) and section 100 of the Code of Civil Procedure. But the question for consideration is that whether uader the provisions exactly the same considerations arise and in all cases where once leave is granted to a person to prefer a second appeal as a peuper it is not possible to refuse to admit the second appeal, In the present case at the time when the second appeal was posted for admission it was dismissed in limini on the ground that the two questions on which tbt case turns arc only question of fact which were concurrently found against the petitioner both by the trial court and the 1st appellate court and no question of law is involved. As provided under Order 44 Rule 1 (2V the court shall reject the application unles it seems reason to think that tie decree appealed from is contrary to law or some usage having the foree of law or is otherwise erroneous or unjust. What is provided under Section 100 of the Code of Civil Procedure is that an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, or any of the following grounds, namely. (a) the decision being contrary to law or to some usage having the force of law; (b) the decision having failed to determine some material issue of law or usage having the force of law; and (c) a substantial error or defect in the procedure provided by the code or any othe law for the time ' being in force, which may posssibly have produced error defect in the decision of the caae upon merits. Unless a case can be brought under one or other of the three categories mentioned above and in no other case the second appeal can be admitted. But at provided under Order 44 Rule 1 (2), the application cannot be rejected, though the decree appealed from is not contary to law or to soma usage having the force of law, if it is otherwise erroneous to unjust. The ground 'is otherwise erroneous or unjust' is more comprehensive and wider than the matters mentioned in (a), (b) and (c) of section 100 of the Coda of Civil Procedure mentioned above. Therefore it is not posible to say that in alt cases of second appeals when an application to grant leave to appeal as a pauper is not rejected as provided under Order 44 Rule 1 (2) of the Code of Civil Procedure, there should be an .admission under section 100 of the Code of Civil Procedure. There can bs cases which do not attract the provisions of section 100 of thecode of Civil Procedure which still come under 'is otherwise erroneous or unjust' as mentioned in Order 44 Rule 1 (2). In the present case the order granting leave is not a speaking order. The order simply reads as follows: 'Leave granted'. Leave might have 'been granted for any of the reasons mentioned in Order 44 Rule 1 (2). It could befor the reason either the decree appealed from is contrary to law or to some usage having the force of the law or is otherwise erroneous or unjust. It is quite possible that the learned judge granted leave at the stage without going into the question whether the decres appealed from is contrary to law or to some usage having the force of law on the ground it is otherwise erroneous or unjust. It is not possible to say from the ore line order that the learned Judge considered the matter whether the decree appealed from is contrary to law or to some usage having the force of law and having come to that conclusion he granted leavs. Under these circumstance, I do not think that, simply for the reason that leave to appeal in forma pauper is was granted earlier, it will bean automatic case for granting admission at ths adnmion stagr It is not jffttblfi to say that at the time the leave was yrauted to file the appeal** a papuper the matter had already been gone into and was found that the decree appealed from is contrary to law or to some usage having the foroe of law and thereforce this court is precluded to go into that question agaia at the admission stage. As already menioned above, the case turns upon tb determination of pure questions of fact which were found agatinst the petitioner by both the lower courts and therefore no question of law is involved. It does not attract any of the matters mentioned in section 100 of the Code of Civil Procedure, Accordingly the second appeal was dismissed in limini. Therefore there are no merits in this review petition and accordingly it is dismissed. K.S.R. Civil Revision Petition dismissed.;