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High Court Of Calcutta
Lahiri, Bachawat, P.N. Mukherjee, JJ.
Shib Krishna Das - Appellants
Vs
Panchanan Ganguly - Respondents
Decided on: Sep 15, 1960
CIVIL PROCEDURE CODE - ORDER 44, RULE 1 - PROVISO - INTERPRETATION - SCOPE OF THE PROVISO - WHETHER THE COURT CAN REJECT THE APPLICATION AT A LATER STAGE ON THE GROUND THAT, UNDER THE PROVISO, THE APPLICATION SHOULD BE REJECTED - WHETHER THE RESPONDENT IS ENTITLED TO SHOW THAT THE DECREE IS NOT CONTRARY TO LAW OR TO A USAGE HAVING THE FORCE OF LAW OR IS NOT OTHERWISE ERRONEOUS OR UNJUST.
Fact of the Case:
The petitioner filed an application for leave to appeal as a pauper. The Division Bench issued a Rule upon the respondents to show cause why the petitioner should not be permitted to file and prosecute the appeal in forma pauperis. When the Rule came up for hearing, a question was raised as to whether at that stage the Court had jurisdiction to go into the question whether the petition satisfied the requirements of the proviso to Order 44, Rule 1.
Finding of the Court:
The Court held that the first duty of the Court before which an application under Order 44, Rule 1, is presented is to fix a date for the hearing of the application under the proviso to Order 44, Rule 1, which is now re-produced as sub-Rule 2 of Order 44, Rule 1, and to satisfy itself after hearing the applicant or his pleader and after perusing the application and the judgment and the decree sought to be appealed from whether the decree is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust. It is only after the Court has satisfied itself that the decree under appeal satisfies the conditions of the proviso to Order 44, Rule 1, or sub-Rule 2 of Order 44, rule 1, as the case may be, that the notice in Form No. 11 of Appendix G of Schedule 1 of the Civil Procedure Code is to be issued or the application is to be sent down to the trial court for enquiry under Order 33, Rule 5, clauses (a), (b), (c) and (e) of the Civil Procedure Code after issuing a notice to the respondent and the Collector according to the form of notice referred to above. That in showing cause in pursuance of the notice neither the respondent nor the Collector is entitled to show that the decree is not contrary to law etc. under the proviso or under sub-rule 2 of Order 44, Rule 1. Where, as in the present case, the Court has issued a notice upon the respondent to show cause why the applicant should not be permitted to file the appeal as a pauper, it must be presumed that the Court has applied its mind to the proviso to Order 44, Rule 1, or sub-Rule 2 of Order 44, Rule 1 and the Court has no further jurisdiction to reconsider the question whether the application fulfils the requirement of the proviso to Order 44, Rule 1, or sub-Rule 2 of Order 44, Rule 1, in the presence of the respondent.
Issues: 1. Whether, when a court, before which an application to file an appeal in forma pauperis under Or. 44, Rule 1, is made, does not reject the application (under or) in view of the proviso to that Rule but issues notice on the opposite parties to show cause why the application to prosecute the appeal in forma pauperis 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, the application should be rejected. 2. Which of the two Bench decisions of this Court, namely, the one in the case of Arunendra Nath Chatterjee and another v. Sanat Kumar Mukherjee and others (1) (reported in 58 C. W. N. 367) and the other in the case of Panchu Bala Dasi v. Nikhil Ranjan Pal (2) (reported in 60 C. W. N, 835) is correct.
Ratio Decidendi: The proviso to Order 44, Rule 1, of the Code of Civil Procedure casts an initial duty on the Court to decide whether the decree, appealed from, is contrary to law or to any usage having the force of law, or, is otherwise erroneous or unjust, and to decide this on a perusal of the application, of the judgment and decree in question, and, if its decision be in the negative, it shall reject the application. The power of rejection under the proviso, is, from its very nature, a special power, though of a limited character. It can be exercised only under and in accordance with the terms of the proviso and it would be exercisable only when the Court, upon a perusal of the application and of the judgment and decree, appealed from, is not satisfied that the decree is contrary to law or to some usage, having the force of law or is otherwise erroneous or unjust, but, if the court is so satisfied, it shall not reject the application, which means that it shall proceed with it under the main part of the rule.
Final Decision: The first question is answered in the negative and the second question is answered by affirming the correctness of Panchu Bala Dasi v. Nikhil Ranjan Pal, (2) 60 C. W. N. 835 and overruling the other or earlier decision (Arunendra Nath Chatterjee and another v. Sanat Kumar Mukherjee and others (1) 58 C. W. N. 367).
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."
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."
3. THIS Rule was issued on September 2, 1955. When this Rule came up for hearing before another Division Bench on August 31, 1956, a question was raised as to whether at that stage the Court had jurisdiction to go into the question whether the petition satisfied the requirements of the proviso to Order 44, Rule 1. On this point the Division Bench was confronted with two conflicting Bench decisions of this Court in the cases of Arunendra Nath v. Sanat Kumar, (1) 58 C. W. N. 367 (decided by Mookerjee and Renupada Mukherjee, JJ.) and Panchu Bala v. Nikhil Ranjan, (2) 60 C. W. N. 835 (Das Gupta and Guha, JJ.). In the former case it was held that the Court had jurisdiction even at that stage to satisfy itself whether the application for leave to appeal as a pauper complied with the requirements of the proviso to Order 44. Rule 1. whereas in the latter case it was held that the Court had no such jurisdiction. It is to be noticed that the earlier decision in Arunendra Nath's case (1) was not brought to the notice of the Bench, which decided Panchubala's case (2). As a result of this conflict between two Bench decisions, the following questions leave been referred to the Full Bench. (1) Whether, when a Court, before which an application to file an appeal in forma pauperis under Order 44, Rule 1, is made, does not reject the application in view of the proviso to that Rule but issues notice on the opposite parties to show cause why the application to prosecute the appeal in forma pauperis 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, the application should be rejected. (2) Which of the two Bench decisions of t
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