MT POWDHARI Vs. MTRAM SANWARI

JUDGEMENT

(1.) In this case the applicant had filed an appeal in this High Court in forma pauperis. The case was put up before a Division Bench which made the following order: "Let notice goto the respondents and also to the Government Advocate." When after notices had been served the matter came up for disposal again, an objection was raised that counsel for the respondents and the Government Advocate could not show cause against the applicant being allowed to appeal as a pauper except in so far as the question of her pauperism was concerned. In view of some conflict of opinion the Division Bench has referred the following question to the Full Bench: Is it open to a Court, hearing an application under Order 44, Rule 1, Civil P.C., after issuing notice to the opposite party and the Government Advocate, to consider 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, or is it precluded from determining that question by the fact that the order issuing notice impliedly held that the decree was not contrary to law or usage having the force of law and that it is not otherwise erroneous or unjust, or is it precluded from considering this question by the fact that notice was issued.

(2.) Following certain earlier decisions of the Patna High Court, a learned Judge of this Court in Mt. Hubraji V/s. Balkaran Singh 1933 All. 11, expressed the opinion that when once notice has been issued by the Court under Order 44, Rule 1, Civil P.C., the Court cannot fall back on the proviso to JJ. 1 which relates only to summary rejection upon a perusal of the judgment and decree appealed from, and if it does so the Court acts with material irregularity in the exercise of its jurisdiction in rejecting the appeal summarily. Since then a Full Bench of the Patna High Court in Talak Mahto V/s. Akhil Kishore 1931 Pat. 183, has reviewed the ease law and arrived at a contrary conclusion.

(3.) In the case of Masuria Din V/s. Moti Lal 1933 All. 925 another Division Bench had a case in which notice had 1 been issued by the Court below and then without hearing the counsel for the opposite party or the Government Pleader the Court had reviewed its previous order and summarily rejected the appeal, being of the opinion that on a careful perusal of the judgment and the decree there was no reason to think that the decree was contrary to law or otherwise erronoous or unjust. The learned Judges did not in express terms mean to follow the ruling in Mt. Hubraji V/s. Balkaran Singh 1933 All. 11, because they remarked that they need not consider such oases and would prefer to "decide the matter from another standpoint. " They came to the conclusion that the Judge's second opinion was perhaps influenced by certain objections without hearing the pauper upon them and in that view of the matter the order complained of was considered to be without jurisdiction and was set aside. In the course of the judgment Young, J., remarked: The Court has no option but to reject the application, unless having read the application and tins judgment it has definitely come to the conclusion that there is a prima facie case to be heard. The Court having once come to that conclusion and passed the necessary order issuing notice, ii; is, in our opinion, funetus officio as regard a summary dismissal. The Judge cannot, thereafter disregard his previous conclusion and dismiss the application summarily. He is hound before he does anything further to hear the parties.