DINGOMAL GHANASHANI Vs. HOTCHAND ADVANI

JUDGEMENT

(1.) During the pendency of a petition under O.33, R.1, C. P. C. for permission to sue in forma pauperis the first respondent died on 19-12-1961. The petition to implead his legal representatives was filed only on 18-9-1964. The plaintiff filed a petition to set aside the abatement and also to excuse the delay in applying to set aside the abatement. All these petitions were allowed by the learned Judge by the order sought to be revised. The learned Subordinate Judge took the view that the provision of O.22, R.4, C. P. C. will apply only to suits and there cannot be any abatement in respect of an application filed under O.33, R.1, for failure to implead the legal representatives of a respondent in time. An application to sue in forma pauperis is deemed the plaint in the suit only after the court has granted the application. In Khatijanbai v. Nur Mahomed AIR 1929 Sind. 136 it was observed by the Judicial Commissioner's Court Sind: