P L D 1961 (W (PLP)

Khan Bahadur for Respondents. Dates of hearing : 31st March 1961 and 14th April, 1961. The petitioners-appellants, who have lost their case in the first Court, seek permission to appeal in forma pauperis under Order XLIV of the Civil Procedure Code. The suit in the lower Court sought a declaration that the appellants and certain other persons, who were impleaded as defendants, are the sole heirs of one Khan of Zakhi Qabristan, and challenged the validity of a gift of 10 kanals and 9 marlas of land allegedly made by the aforesaid Khan on the basis of a registered gift deed dated the 1st of November, 1947 in favour of the contesting defendants-respondents, Sikandar and Samundar, on the ground that it was made by Khan during maraz-ul-maut and as such, was ineffective against the interests .of the heirs. The value of the suit land for purposes of Court-fee and jurisdiction was fixed at Rs. 5,512 for which the Court-fee amount was paid in the lower Court.

2. The petition for leave to appeal in forma pauperis is made on the ground that the appellants-petitioners had sold a maina which was only property they had, in order to meet the expenses of the Court-fee in the trial Court and that after exhausting that source they have no other means to meet the cost of the Court-fee required for the appeal. The application is accompanied by a schedule of the property belonging to the appellants valued at Rs. 22/8 which is attested by an affidavit of the applicant, 6hulam Muhammad, to the effect that the applicants do not own any other property.

3. The application came up for preliminary hearing on the 22nd of January, 1959, before a Judge of this Court, Mr. Justice Sheikh Muhammad Shafi, who issued a notice of the application to the opposite-party and the Collector. The counsel for the contesting defendants, namely, Sikandar and Samundar, has appeared before me but nobody is present on behalf of the Collector in spite of service. The learned counsel for the contesting respondents tried to urge that before the application is allowed or inquiry is instituted into the pauperism of the appellants-petitioners, the Court has to be satisfied that the decree appealed from is contrary to law or some usage having the force of law, or is otherwise erroneous or unjust, as provided by the proviso to rule of Order XLIV of the Civil Procedure Code. This contention is met by the learned counsel for the petitioners with the reply that after the notice was issued it is not open to the Court now to examine the matter from that angle, nor should the opposite-party be permitted to convass the merits of the judgment and decree under appeal, and that all that is left to be seen now is whether the appellants are paupers, that is to say, whether they are possessed, of sufficient means to pay the Court-fee or not. Order XLIV rule 1, reads as follows:- "R.

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 pauper, in so far as those provi sions are applicable: 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." It will be seen that the proviso added to this provision, cited above is couched in mandatory language, providing a salutary, safeguard for the litigants who are opposed by paupers. The proviso ordains that the application still be rejected unless upon its perusal and of the judgment and decree appealed from the Court 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 perusal on the part of the pouf t which is contemplated is limited to the three documents mentioned in the proviso and is not suggestive of a very intensive study of the matter at that stage, nor do the words "sees reason to think" imply any fixity of view of decision. The Court shall reject the application when in its opinion, on. a reading of the relevant documents, no unjustness or error is revealed in the judgment and decree against which appeal is sought to be brought. This is the stage wherein the Court is to be guided on its own legal and equitable appraisement of the point in issue, seeking- assistance, if that be available, of the party or its counsel whose behalf the application is being pressed. But even at this stage, although intensive study or debate is not at all required, the notice to the other party should not be issued as a matter of course i.e., not without some basis to think that the matter requires a probe. If, however, a notice is issued, it only means that the Court has not chosen to reject the application but it cannot at the same time be said that by not rejecting it the Court has accepted the application. Therefore, if after issue of notice the other party opposes the application on the ground that the proviso to Order XLIV, rule 1, is not satisfied, it shall be open to it to do so. It is wrong and against principles of natural justice to tie down a party to an order that has been passed behind its back and for that reason alone mere issue of a notice to the opposite-party in applications under Order XLIV, rule 1, Civil Procedure Code, does not preclude that party to contest the application. In my view, even at that stage if the Court considers that no error or unjustness is disclosed in the judgment and that it is not contrary to law or some usage having the force of law, it can still reject the appli cation. It is true that in applications under Order XLIV, rule 1, there is no legal right in the parties to engage the Court in a debate on the merits or demerits of the decree under appeal, the matter being one of subjective satisfaction of the Court itself to refuse or reject the application on consideration of the points stated by the proviso. An intensive argument by the parties in fact may have to be avoid ed, so that the ultimate hearing of the appeal, whether admitted in forma Pauperis or alternatively in the ordinary way, is not pre judiced. If the Court accepts the application, all that can be said is that it has reason to think that the decree appealed from calls for a review but it does not amount to the Court holding as a positive findings that the decree in question suffers from a defect which renders it liable to reversal on the view that I have adopted on my interpretation of the proviso to Order XLIV, rule 1, I allowed the respondent to stag his objections, if any, to the application, and have come to the conclusion that the requirements of the proviso are met in this ease and the question in issue requires examination to test the validity and justness of the decree appealed from. The only question now to be decided is whether the applicant is a pauper or not. An affidavit has been filed by the applicant, Ghulam Muhammad, that he is not possessed of sufficient means to meet the amount of Court-fee required for appeal. The Collector on behalf of the Government has not taken an interest in the matter and no counter affidavit has been filed by the opposite party to challenge the stand of the petitioner-appellants. It is not urged before me that any further inquiry on the point of pauperism of the petitioner will yield any practical results and, therefore, I am desisting from ordering it. I would accept this petition and order that this appeal be registered and heard in forma pauperis. The relevant provisions contained in Order XXXIII of the Civil Procedure Cede pertaining to suits are applicable to appeals instituted in forma pauperis as far as practicable. This means that the appellants can be dispaupered as contemplated by rule 9 of Order XXXIII at any stage before the conclusion of the appeal if

(1) they are found guilty of vexatious conduct in the course of c the appeal; (2) it appears that their means are such that they ought not continue to prosecute the appeal as paupers, and (3) they have entered into any agreement with reference to the subject-matter of the suit under which any other person has obtained an interest in such subject matter. The costs of this application shall follow the event. K. M. A. Petition accepted.