Beaumont, C.J.
1. This is an appeal against an order of Mr. Justice Kania made in Chambers allowing the respondent to sue the appellant in forma pauperis, and a preliminary objection is taken that the judgment is not a judgment within Clause 15 of the Letters Patent, and that no appeal lies. The Prothonotary, to whom application under Order XXXIII was made in the first instance by virtue of Rule 89 of the High Court Rules, rejected the application for leave to sue as a pauper, but his order was set aside by the learned Judge in Chambers. There seems to be some question as to the correct procedure to be adopted on these pauper applications, and we will deal with that matter before considering the preliminary objection.
2. The scheme of Order XXXIII, Civil Procedure Code, which deals with pauper applications, seems reasonably clear, Rule 2 provides that every application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits, and it has to be signed and verified in the manner prescribed for the signing and verification of pleadings. Rule 4 provides that where the application is in proper form and duly presented, the Court may, if it thinks fit, examine the applicant, or his agent when the applicant is allowed to appear by agent, regarding the merits of the claim and the property of the applicant. Then under Rule 5 the Court shall reject an application for permission to sue as a pauper on the various grounds specified, one being that the applicant is not a pauper, and another being that his allegations do not show a cause of action. The other grounds are not material. Now, up to that point it is clear that the Court is dealing with the matter ex parte. The Court gets an application which is in proper form under Rule 2, and it can then examine the applicant or his agent regarding both the merits of the claim and the property of the applicant, and it can ex parte reject the application, if it is not satisfied upon those two points, amongst others. Then Rule 6 provides that where the Court sees no reason to reject the application on any of the grounds stated in Rule 5, it shall fix a day for receiving such evidence as the applicant may adduce in proof of his pauperism, and for hearing any evidence which may be adduced in disproof thereof. Under that rule the only evidence which can be adduced is on the issue of pauperism, and evidence as to the merits of the case is not allowed. Then Rule 7 provides that on the day so fixed, or so soon thereafter as may be convenient, the Court shall examine the witnesses produced by either party, and may examine the applicant or his agent, and shall make a memorandum of the substance of their evidence. Sub-rule (2) provides that the Court shall also hear any argument which the parties may desire to offer on the question whether, on the face of the application and of the evidence taken by the Court, the applicant is or is not subject to any of the prohibitions specified in Rule 5. Then under Sub-rule (5) the Court either allows or refuses the application to sue as a pauper. So that when acting under Rule 7 the Court has before it the statement made by the applicant in his application and any evidence which he has given on being called upon by the Court under Rule 4, which may deal with pauperism or merits, and it also has the evidence given on the notice under Rule 6, which can deal only with pauperism, that is, with the means of the applicant, and on that material it is open to the opponent to argue that the applicant ought not to be given leave to sue as a pauper. But the opponent is not himself entitled to call any evidence, or to be present when any evidence is heard, dealing with merits.
3. Now, what happened in this case was this. The suit is a suit for malicious prosecution, and the Prothonotary does not appear to have examined the applicant or his agent under Rule 4, but he gave a notice to the opponent fixing a time to hear 'any evidence which you may then bring forward in disproof of the pauperism of the petitioner.' So that, that notice seems to have been given under Rule-6, and only entitled the defendant in the suit to give evidence on the issue of pauperism. On that application the plaintiff appeared by his solicitors, and the defendant in the proposed suit appeared by counsel; but it is fair to say that counsel confined his cross-examination, as far as I can see, to the question of the means of the plaintiff. But the Prothonotary undoubtedly heard evidence as to the merits of the suit, and he came to the conclusion that the plaintiff, though he proved that he was a pauper, did not show any prima facie cause of action, because the Prothonotary considered that the evidence before him did not disclose malice on the part of the defendant. But, as I have already pointed out, the Prothonotary when hearing the notice under Rule-7 could not allow evidence on merits, though he could hear an argument on merits based on the plaint and on any evidence given by the applicant under Rule-4. The Court is not bound to accept the plaint at its face value; it can make inquiry of the applicant under, Rule-4. But the policy of the framers of the Code evidently was not to allow the inquiry under Rule-7 to be converted into a sort of preliminary hearing of the suit, but to confine that inquiry to the issue of pauperism. In the present case the applicant alleged an ulterior motive for the prosecution which suggests malice; whether he can establish malice is essentially a matter for the trial, depending on what inference should be drawn from the facts proved. It is suggested that High Court Rules 218 and 219 introduce a variation of the procedure laid down by Order XXXIII. I do not think so. It is true that the rules do not show at what stage an examination under Order XXXIII, Rule-4, is to take place. This may have to be after the petition has been ordered to be interpreted and declared gratis under Rule-218, but must be before the notice to be issued under Rule-219.
4. But then there is the preliminary objection that no appeal lies. This Court held in Sadashiv v. Soonderdas : (1930)32BOMLR1647 that against an order refusing leave to sue as a pauper a right of appeal did lie under Clause 15 of the Letters Patent, because the effect of the order is to deprive the applicant of the right given to him under Order XXXIII of suing as pauper; but it is very difficult to see how an order giving leave to sue as a pauper determines any right as against the defendant in the suit. He may still be able to recover his costs against the pauper ; and the order in terms deprives him of no right whatever. It is suggested that he is deprived of a right under Rule-15 of Order XXXIII, which provides that refusal to allow the applicant to sue as a pauper is a bar to any subsequent application of the like nature, but the applicant is to be at liberty to institute a suit in the ordinary manner, provided that he first pays the costs incurred by the opposite party in opposing his application for leave to sue as a pauer. It is suggested that the order in this case will deprive the appellant of the latter right. That is a very indirect consequence of the order. The right only arises from a refusal to give leave to sue, and there has been no such refusal. It is possible that the application, even if not allowed, might have been withdrawn by the permission of the Court. It seems to me that any advantage which the appellant gets under Rule-15 does not arise from the order giving leave to sue which determines no right within the meaning of the cases under Clause 15 of the Letters Patent.I think, therefore, that the preliminary objection must prevail, and that there is no right of appeal in this case.
5. The appeal must be dismissed.
6. With regard to costs, Rs. 300 fixed for profit costs of solicitors and counsel, which they may accept, and Rs. 50 for out-of-pocket for the printing of the paper book, to be paid by the appellant. The balance of Rs. 150 out of the Rs. 500 deposited in Court allowed to be withdrawn by the appellant.
Chagla, J.
I agree