1990 PLP 1482 (MLD)

Later, the appeal was dismissed for default in appearance on 24‑5‑1989, but on an application, it was again restored to file and fixed for hearing preliminary arguments on 10‑6‑1989. Preliminary arguments were heard on 29‑10‑1989 and relying upon the decision of the Supreme Court reported as P L D 1989 SC 771, appeal was admitted to hearing and notices were issued to the respondents for their appearance, on 23‑11‑1989. After securing the appearance of respondents 1 and 2 in the appeal and proceedings ex parte against other respondents, the appeal was postponed to 26‑3‑1 for hearing arguments on merits. Meanwhile, vendees‑defendants came up in revision to this Court against the order of learned Judge below granting leave to appeal in forma pauperis. It was admitted on 20‑2‑1990 and further proceedings in the appeal were stayed. Ch. Muhammad Saeed Advocate appears for the petitioners. Respondents 1 to 3 are represented by Sh. Khalil‑ur‑Rehman Advocate. On behalf of the petitioners, it is contended that the learned Judge below did not correctly understand and appreciate the provisions of Order XLIV, rule 1, Civil Procedure Code and consequently, failed to abide faithfully by the mandatory procedural requirements of Order XLIV for true determination of the appellants' pauperism. In support, learned counsel referred to Mst. Mahmooda Khatun v. Muhammad Habibur Rahman and others P L D 1965 Dacca 358, Saeed Akhtar Siddiqui v. Arbab Hussain and another P L D 1966 (W.P.) Peshawar 130, Muqaddar Khan v. Burmah Shell Oil Storage and Distributing Co. Ltd., Kar. and another P L D 1968 Kar. 523, Dan v. Said and 2 others P L D 1975 Lah. 870 and also a decision reported as 57 Cal. W.N.

367. Upon the language of Order XLIV, Civil Procedure Code, and the decisions relied upon, it was vehemently contended that without notice to and hearing of the respondents in the civil appeal, question of pauperism could not have been correctly resolved in a summary ex parte enquiry by the Judge below. To counter the above arguments, Sh. Khalil‑ur‑Rehman learned counsellor the contesting respondents submitted that Order XLIV, Civil Procedure Code did not contemplate a prior notice to the respondents in appeal for deciding about the competence and maintainability of the appeal as also the question relating to decision on pauperism. It was further submitted that revision was barred by limitation. In this behalf, learned counsel referred to the cases of Manager, Jammu & Kashmir State Property in Pakistan v. Khuda Yar and another P L D 1975 SC 678 and Aziz Din and another v. Qadir Bakhsh and 2 others P L D 1987 Lah.

119. Seen from the above, civil revision raises two points of importance. First point is whether for deciding of the appellants' right to appeal as indigent persons without payment of required court‑fee on the appeal, respondents could claim a notice and hearing by the Court, and, second, whether the revision petition was barred by laches or limitation as asserted on behalf of respondents. Presently, I intend to postpone the consideration on the question of laches/limitation till I have attended to the requirements of law enacted in Order XLIV, Civil Procedure Code for deciding of an application for leave to appeal as a pauper. In doing so, it shall also be my endeavour to discover whether notice to the respondents in appeal was required by law, and furthermore, whether it was necessary to hear them before determining the question of leave to appeal as pauper. Since the decision of the point turns on the construction of Order XLIV, Civil Procedure Code, it shall be profitable to make a reference to it. It is a short Order comprising two Rules only. Rule 1 of Order XLIV reads as follows:‑‑

1. Who may anneal as pauper.‑‑ 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; Procedure on application for admission of appeal.‑‑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." Rule 2 provides:‑‑ "2 Inquiry into pauperism.‑‑The inquiry into the pauperism of the applicant may be made either by the Appellate Court or under the orders of the Appellate Court by the Court from whose decision the appeal is preferred: Provided that, if the applicant was allowed to sue or appeal as a pauper in the Court from whose decree the appeal is preferred, no further inquiry in respect of his pauperism shall be necessary, unless the Appellate Court sees cause to direct such inquiry:" In Secy. of State v. Mt. Son Kali A I R 1934 All. 424, it was observed:‑‑ "As we read 0.44, R.1 it means this: When a person wants to appeal as a pauper, the first thing that he is to do is to present an application for that purpose. The Court has then to scrutinize the application as laid down in the proviso to R.1. It has to see whether the decree is contrary to law or to some usage having the force of law, or is otherwise erroneous or unjust. If the Court finds that the decree does not contravene any of these rules, then the Court must reject the application for permission to sue as a pauper. On the other hand, if the Court finds that prima facie there is no reason to reject the application, it is to issue notice to the Government Pleader and also to the respondent to show cause why the application should not be granted. The Civil Procedure Code, in Appendix G; Form No. 11, prescribes how the notice is to be worded. It is true that R.1 does not in so many terms say that the Court is to issue notice to the Government Pleader or to the respondent, but para. 1, R.1 has the following words: "Subject in all matters .to the provisions relating to suits by paupers in so far as those provisions are applicable." These words imply that so far as possible, the procedure laid down in 0.33, Sch. 1, Civil P.C, is to be followed. The Form No. 11 in Appendix G seems to confirm this view. In most cases issue of notice would be desirable even if it be not incumbent on the Court to issue it in all cases. When a notice has been issued, it is open to the Government Pleader, and also to the respondent, to show not only that the applicant is not entitled owing to possession of sufficient property to appeal as a pauper, but they are also entitled to show that the decree appealed against is not contrary to law or to some usage having the force of law, or is not otherwise erroneous or unjust.". In later part of the judgment, the Court observes:‑‑ "We have been taken through the three judgments of the three learned Judges who composed the Full Bench and we are of opinion that the pronouncements contain the true exposition of the law. The view taken there is in substance what we have stated to be the correct view of the law, namely the Court has first to consider on receipt of the application 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." Similar views were expressed in Mating Nyein v. Burma Electric Supply Co. Ltd., Mandalay A I R 1939 Rang.

25. In Hasan Banu v. Radha Kishan A I R (35) 1948 All. 323, a Division Bench of the High Court on Order XLIV, rule 1, Civil Procedure Code in para. 7 of the judgment observed: "The order of Mr. Baylis resolves itself legally into two pests. He must be deemed to have found the applicants paupers and also that they had a prima facie case. He was certainly within his rights in holding that they had a prima facie case under. 0.44, R.1, Civil P.C., but had no right to come to an ex parte decision as regards pauperism. Mr. Shambhu Nath Seth, the learned counsel for the applicant has invited our attention to the amendment effected by the Allahabad Him Court, which required Mr. Baylis to hear his client, even when he adjudicated upon the question whether the appellants had a prima facie case. Be that as it may, Mr. Baylis was not right in deciding the question of pauperism in favour of the applicants, without giving an opportunity to the other side to meet this position:" In Shib Krishna Das v. Panchanan Ganguly and others A I R 1961 Cal. 346, S.C. Lahiri CT, of the Court with whom R.S. Bachawat and P.N. Mookerjee JJ., agreed, after an exhaustive survey of the decided cases, on notice to, and hearing of the respondents in appeal, on question of pauperism observed that it is only after the Court has satisfied itself that the decree under appeal satisfied the conditions of the proviso to Order 44, Rule 1; or sub‑rule 2 to 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. From the examination of the decided cases, majority of the High Courts are agreed that for determining the pauperism of the applicant to file appeal, a notice to the respondents in the prescribed form is essential and their hearing if they appear, a legal must. Weight of authority supports this statement. I agree with it and accept it as a correct enunciation of law. It is so because an order which has been passed behind the back of a party should not operate to the prejudice of that party. Additionally, the case law relied upon by the learned counsel for the petitioners is also in point. Except a bare reading of two Rules of Order XLIV Civil Procedure, Code, learned counsel for the contesting respondents did not bring to my notice any decided case taking the view that notice to and hearing of the opposite party was not required at this preliminary stage. Furthermore appeal arose out of a pre‑emption suit. Its object was substitution of the pre‑emptors for the vendees in the sale. Obviously, substitution could not take place without payment of sale price. Houses were sold for Rs.1,20,000 in 1986. Those were situated inside Bhat Gate, Lahore. Plaintiff had paid Rs.9000 as court‑fee on the plaint, in the pre emption suit. Though Orders XXXIII and XLIV of Civil Procedure Code are couched in wide language, without any limitation on the nature of suits or appeal which could be instituted or preferred in forma pauperis, yet it might be a serious question for consideration whether pre‑emption which essentially is a right to acquire property in preference to others could be brought within the fold of these two Orders. In default of proper assistance at the bar and more so, when the point had not received the attention of the learned Judge below who heard the appeal, I shall not hazard a considered comment on this point and leave it to the decision of the learned Judge below to whose Court the case is being set for deciding of the application for leave to appeal in forma pauperis afresh in accordance with law after notice to and hearing of the contesting respondents. As for laches/limitation, suffice it to observe that petitions in revision are not governed by any law of limitation though the practice over years has developed to entertain applications in revision only if they are filed within 90 days of the date o the order sought to be revised. This is so, because period of limitation prescribed for an appeal to the High Court is 90 days. From the date of service and appearance in Court on 23‑11‑1989, filing of revision petition in the High Court on 20‑2‑1990 cannot be legitimately held to be barred by laches or limitation. Moreover, when there are exceptional circumstances or the order sought to be revised is palpably illegal, void or without jurisdiction, High Court will not refuse to exercise its revisional powers under section 115 Civil Procedure Code to rectify the error. Judgment of the Supreme Court relied upon in this behalf also favours the above statement. As Order XLIV Civil Procedure Code was not correctly interpreted by the learned Judge below who came to make the impugned decision in clear disregard of it, I would accept the petition, set aside his order and direct him to decide the application for leave to appeal in forma pauperis afresh in accordance with law and the observations made above. Costs of this petition to be borne as incurred. Parties shall appear before the Court below on 16‑4‑1990. Records be returned to it. AA./I‑184/L Revision accepted.