Krishnasami Panikondar (Died) And Anr. ... vs S.R.M.A.R. Ramasami Chettiar And Ors. on 1 August, 1912
7. It is true that both in the case of pauper suits and pauper appeals the Legislature thought it necessary to impose some limitation on the right of suit or appeal in forma pauperis for the protection of the litigant opposed to the pauper from frivolous suits or appeals. Such protection in the case of suits appears in Order 33, Rule 5. This rule not being applicable to appeals, analogous protection in the case of appeals is mentioned in the proviso. Once the proviso is there, I do not think we can fall back upon Order 33, Rules 5 and 7. The proviso being complete by itself, we cannot import into it the idea that apart from the rule the respondent is, as a matter of general principle, entitled to notice before leave is given. It is true that an order passed without notice to the respondent ought not to be binding upon him; but nobody says that leave once having been given the order granting leave is conclusive, that the judgment appealed against is erroneous or contrary to law; and at the actual hearing of the appeal the respondent would have an opportunity of showing that the decree appealed against is in accordance with law and is not erroneous or unjust. So that, I do not agree with the Lahore High Court in thinking that if leave is granted it amounts to an order binding on the respondent without his having been heard. Mr. Patanjali Sastri relied on the analogy of a decision in Krishnaswami Panikondar v. Ramaswami Chettiar (1917) L.R. 45 I.A. 25 : I.L.R. 41 M. 412 : 34 M.L.J. 63 (P.C.) where the Privy Council observed that before excusing the delay in the filing of appeals, notice should always go to the respondent in the first instance. That relates to an entirely different matter and I do not see any analogy between the two proceedings. At the end of the period prescribed for filing an appeal the respondent gets a vested right in the judgment and that right ought not to be lightly disturbed and therefore notice ought to go to him before the delay is excused. But apart from that consideration the real ground for the observation of the Privy Council was that there should be no uncertainty about the question of the delay in filing the appeal until the final hearing of the appeal and until heavy costs are incurred.