- (1.) THIS is an application in revision against the order of the District Judge, jodhpur, dated 27-7-1957, and arises in the following circumstances:
(2.) THE petitioner wanted to file an appeal in the court of the learned District Judge, jodhpur, against the judgment and decree passed against him by the Civil Judge, jodhpur, on 17-12-1956, in a money suit. The petitioner presented an application for leave to file an appeal in forma pauperis. The appellate court ordered a notice to be issued to the respondents. When that application came before the court on 27-7-57, it was submitted by the non-applicants that since the decree was not contrary to law or some usage having the force of law or otherwise erroneous or unjust, it should be dismissed under the proviso to Order 44, R, 1, C. P. C. This argument found favour with the learned District Judge and he dismissed the petitioner's application for permission to appeal in forma pauperis. It is against this order that the present revision application has been filed.
(3.) LEARNED counsel for the applicant has urged that the appellate court could reject his application under the proviso to Order 44, Rule 1 at the time when it was presented, but once the court had issued notice to the opposite party, there was no jurisdiction left in the court to pass any order under the proviso. He means to say that once the notice was issued to the opposite party, the court lost its jurisdiction to dismiss the application under the proviso and thereafter it could only make an enquiry into the pauperism of the petitioner. In support of his argument learned counsel has referred to Sin. Panchu Bala Dasi v. Nikhil Ranjan pal AIR 1956 Cal 530 (A), in that case it was held that "when a court before which an application to file an appeal in forma pauperis is made does not reject the application in view of the proviso to that rule, but issues notice on the opposite party to show cause why the application to prosecute the appeal as pauper should not be allowed, it is not open to the court at a later stage to reject the application on the ground that under the proviso it is bound to reject it. " This observation no doubt supports the contention of the petitioner's learned counsel, but we respectfully disagree with the view taken therein. The learned Judges who decided the above case have observed that "the matter which was raised before them did not come up for consideration before that court ever before. " The learned Judges then relied upon a Single Bench authority of the Allahabad high Court in Mst. Hubraji v. Balkaran Singh AIR 1933 All 11 (B ). It appears that the attention of the learned Judges was not invited to the fact that the view taken in the above case was not followed by a Division Bench of the same High Court in secy, of State v. Mt. Son Kali, AIR 1934, All 424 (C ). In that case it was held that "on receipt of an application to appeal as! a pauper the court has first to consider whether prima facie there is any ground for the rejection of the application. If the application is rejected, the whole matter ends there. If it is not rejected, a notice is to go to the Government Pleader and the respondent and when they appear, the court has to decide on hearing them whether the applicant is in a position to pay the court-fee and further whether the decree is one which is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust. " A similar matter again came before a Full Bench of the same High Court in Mt. Powdhari v. Mt. Ram Sanwari, AIR 1934 All 1004 (D ). In that case it was again reiterated following the view taken in the preceding case as follows: "we do not mean to lay down that the court is bound to issue notice to the opposite party; nor do we lay down that once a notice has been issued, the court is compelled to hear the opposite party and cannot change its mind and review its previous order under Section 151 C. P. C. Our view is that there is nothing to prevent the court from hearing counsel and dismissing the application ultimately on the ground that the decree and judgment are not contrary to law, etc. , even if notice has been issued and parties have appeared through counsel. Our answer to the question referred to us therefore is that it is open to the Court 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, and the Court is not precluded from determining such question merely because notices to the opposite party and the Government advocate have been issued previously. ";