Decided on September 15,1960



- (1.) THIS Reference raises the question of the true interpretation of Order 44, Rule 1, Civil Procedure Code, as it stood prior to its amendment by Act 66 of 1956 of the Indian Parliament. The point in controversy between the parties is whether in showing cause in pursuance of a notice issued under Order 44, Rule 1, the respondent is entitled not only to challenge the pauperism of the applicant for leave to appeal as a pauper, but also to show under the proviso to Rule 1 that the application is liable to be dismissed on the ground that the decree is neither contrary to law nor to any usage having force of law nor is otherwise erroneous or unjust.
(2.) THE facts of the case which are not in dispute are these: On March 22, 1955, the petitioner filed an application for leave to appeal as a pauper. On March 29, 1955, the Division Bench before which the petition was presented passed the following order:- "let the application be sent down to the court below for enquiry into the alleged pauperism of the petitioner after giving notice to the other side as also to the Collector. "
(3.) IN pursuance of the aforesaid order the petition was sent down to the trial court under Order 44, Rule 2, Civil Procedure Code; notices were served upon the respondent as also upon the Collector. The Collector filed a report stating that the Government would not oppose the application. One of the respondents, however, filed an objection but did not enter appearance on the date of hearing. On behalf of the Collector it was submitted that on local enquiry it was found that the petitioner had no sufficient means to pay court-fees upon the memorandum of appeal. Upon the Collector's report and upon the evidence adduced by the petitioner the trial court submitted a report dated August 22, 1955, that the petitioner was not possessed of sufficient means to enable him to pay court-fees required for the memorandum of appeal. When that report was placed before the Division Bench, it issued a Rule upon the respondents in the following terms :- "let a Rule issue calling upon the opposite parties to show cause why the petitioner should not be permitted to file and prosecute the appeal in this Court as a pauper or such further or other order or orders made as to this Court may seem fit and proper. ";

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