The respondent, appearing in response to a notice given on an application for leave to appeal as a pauper, is not entitled to contend that the decree is correct and just and therefore the applicant should be refused leave to appeal as a pauper, but can contest only the pauperism of the applicant.

1. This is an application by the plaintiff, who had been allowed to institute the suit in forma pauperis, for further leave to appeal as pauper, from the decree dismissing his suit. Notice on this application was ordered by a learned judge of this court on 23-6-1959; and the respondent and the Government Pleader have entered appearance is response thereto. The question now is whether, at this stage, the respondent is to be allowed to contend that the decree is not contrary to law or to some usage having the force of law and is not otherwise erroneous or unjust and therefore the application should be refused.

2. O.44, R.1, C. P. C. provides:

"[1] Any person, entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as a pauper subject, in all matters, including the presentation of such application, to the provisions relating to suits by paupers, in so far as those provisions are applicable.

[2] The appellate court after fixing a day for hearing the applicant or his pleader and hearing him accordingly if he appears on that day and upon a perusal of the application and of the judgment and decree appealed from, shall reject the application, unless, it sees reason to think that the decree is contrary to law or to some usage having the force of law, or is otherwise erroneous or unjust"

The sub-rule (2) was newly introduced by Act LXVI of 1956. Formerly in its place there was a proviso which reads as follows:

"Provided that the Court shall reject the application unless, upon a perusal thereof and of the judgment and decree appealed from, it sees reason to think that the decree is contrary to law or to some usage having the force of law, or is otherwise erroneous or unjust"

A comparison of the old and new provisions shows that the only change introduced by the amendment is that the court, before rejecting the application for leave, should also hear the applicant or his pleader if he appears on the day fixed for hearing him. In other respects, the old and new provisions are identical.

3. Sub-clause (2) makes it the duty of the court to peruse the application and the judgment and decree appealed from and to hear the applicant or his pleader if he appears on the day fixed for hearing him, and to reject the application if it does not see reason to think that the decree is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust. In other words, unless the court, on a perusal of the application and of the judgment and decree appealed from and hearing the applicant or his pleader, sees no reason to think that the decree is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust, it is bound to reject the application. So the very issuance of notice after hearing the applicant's counsel tantamounts to a record that the conditions requisite for the issue of notice were present in the instant case, namely, that the court saw reason to think that the decree is contrary to law or to some usage having the force of law, or is otherwise erroneous or unjust. It is not open to the court to reconsider the matter at a subsequent stage and say that the decree is correct and just and therefore no notice ought to have been issued on the application or that the application should have been rejected at the first stage. It is significant that at the stage of ordering notice the court is only to peruse the application and the judgment and decree appealed from and to hear the applicant or his pleader. Even the rest of the record of the case ought not to be looked into; nor is the respondent to be heard on the matter. The expression "after fixing a day for hearing the applicant or his pleader and hearing him accordingly if he appears on that day" shows that only the applicant or his pleader is to be heard. In Order XVIII, the expression used is 'hearing