The court cannot reject an application to file an appeal in forma pauperis after issuing notice to the opposite party.

( 1 ) THIS Rule raises the question whether when a court before which an application to file an appeal in forma pauperis under Order 44, Rule 1, Civil P. C. 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 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. It appears in the present case that a defendant against whom a suit had been decreed by a Munsif of Serampore filed an application to prosecute the appeal in forma pauperis on the ground that she was unable to pay the fee required for the memorandum of appeal. The learned Judge examined the applicant and thereafter directed issue of notice. The notice that was issued called upon the opposite party to produce evidence, if they so desired, to show' that the applicant was not a pauper and stated further that on the date mentioned the applicant would also produce evidence to show that she was a pauper. Later on, an order was passed by the learned Judge apparently after hearing both sides and consideration of the evidence on the record that there was no reason to differ from the judgment and decree and he held that the judgment was neither erroneous nor unjust, and he concluded with the following order : "under the circumstances, the appellant cannot be allowed leave to sue in forma pauperis. Accordingly, the petition for leave to sue in forma pauperis is rejected.

( 2 ) THOUGH the question, whether such an order can be passed at a later stage after notice had issued on the opposite party, has not come up earlier before this Court, the matter appears to have been considered in some of the other High Courts in India.

( 3 ) IN Mt. Hubraji v. Balkaran Singh, 1933 All 11 (AIR V 20) (A), Kendall J. held that a court cannot reject an application to appeal in forma pauperis under Order 44, Rule 1, Civil P. C. , after issuing notice to the Government Pleader and to the respondent. Rejecting the argument that as notice had been issued to the opposite party, it must have been intended that he should have a chance of pointing out that the decree was "contrary to law or some usage having the force of law or is otherwise erroneous or unjust", his Lordship pointed out that the respondent would have an opportunity of proving this to the Court when tne appeal was heard on its merits, but that "he has no right to put back the hands of the clock and ask the Court to reject the application summarily under that special proviso when the proceedings have already passed beyond the summary stage". His Lordship further observed :"that this is so is indeed indicated by the form of the notice issued to him, which only calls on him to show why the applicant should not be allowed to. appeal as a pauper. It does not call on him to show why the application snould be rejected because the decree is contrary to law or some usage having the force of law or is otherwise erroneous or unjust. The notice, in fact, relates only to the application and not to the appeal against the decree. "

( 4 ) IN K. Nagarattamma v. I. Nagayya, 1933 Mad 658 (AIR V 20) (B), Curgenven J. held similarly that when once issue of notice is directed, the appeal should not be dismissed subequently under the proviso. His Lordship observed;"it is impossible to contend on the terms of the proviso that the Court would be justified in issuing notice in order to make up its mind whether so to reject the application. Accordingly, it must, I think, be presumed that when the first learned Judge, who dealt with the application, directed the issue of notice, he had applied his mind to this provision and had decided not to reject the appeal under it. It could not, therefore, be open to his successor to reconsider this matter and come to a contrary conclusion. "

( 5 ) THE same view was taken in se