SRIKANTA SUBBARAJE Vs. S P SUNDARAJA CHAR

JUDGEMENT

(1.) The short question that arises in this revision petition is, whether P. Misc. No.10 of 1965 was not maintainable having regard to the provisions of Or.33, R.15 CPC. It arises in this way.

(2.) The petitioners have filed P.Misc.No. 10/65 seeking permission to file the suit as paupers. The learned trial Judge on the material on record, came to the conclusion that the petitioners were paupers. But it was held that the application was not maintainable inasmuch as prior to this, another Misc.No.158/64 was filed in the Court of the Additional 1st Munsiff at Mysore and it was posted on 21-8-65 and as the petitioner in that case and the Counsel were absent the petition was dismissed. The learned trial Judge therefore held that if a petition is dismissed for default of appearance, a second petition is not maintainable under Or.33, R.15 CPC. as the dismissal for default amounts to a refusal, under R.7(3) of Or.33. It is the correctness of this view that is challenged in this revision petition.

(3.) The relevant provisions of Or.33 are, Rules, 5, 7 and 15 and the relevant portion of Rule 5 is given below: " 5. Rejection of application:The Court shall reject an application for permission to sue as a pauper (a) Where it is not framed and presented in the manner prescribed by Rules 2 and 3 and the applicant when required by the Court to rectify the defect within a time to be fixed by the Court fails to do so, or (b) Where the applicant is not a pauper, or (c) Where he has, within two months next before the presentatation of the application disposed of any property fraudulently or in order to be able to apply for permission to sue as a pauper, or (d) Where his allegations do not show a cause of action, or (e) Where he has entered into any agreement with reference to the subject matter of the proposed suit under which any other person has obtained an interest in such subject matter." The provisions of Rule 7, viz., (1), (2) and (3) run thus: "7. Procedure at hearing: (1) On the day so fixed or as soon therefater as may be convenient, the Court shall examine the witnesses (if any) produced by either party, and may examine the applicant or his agent, and shall make a memorandum of the substance of their evidence. (2) 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 (if any) taken by the Court as herein provided the applicant is, or is not subject to any of the prohibitions specified in Rule 5. (3) The Court shall then either allow or refuse to allow the applicant to sue as a pauper." The provision of Rule 15 reads thus: "15. Refusal to allow applicant to sue as pauper to bar subsequent application of like nature: An order refusing to allow the applicant to sue as a pauper shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue; but the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such right, provided that he first pays the costs (if any) ircurred by the State Government and by the opposite party in opposing his application for leave to sue as a pauper."