BABA PAWAN DAS Vs. UTTAR PRADESH GOVERNMENT

JUDGEMENT

(1.) THIS is an application in revision under Section 115, Civil P. C. , against the order of the Civil judge, Sitapur, dismissing an application for permission to sue in forma pauperis.

(2.) IT appears that the applicant filed an application for permission to sue in forma pauperis under order 33, Rule 1, Civil P. C. Notice was issued to the Government and to the opposite party and on the date of hearing of the application the learned Civil Judge dismissed the application on the ground that the suit was barred on the principle of res judicata. The applicant had, it is admitted, instituted a suit for a declaration of his title to the property which was the subject-matter of the dispute in the suit which has given rise to this revision. That suit was ultimately dismissed on the ground that the applicant had omitted to sue for possession. It was after the earlier suit had been dismissed that the applicant, along with one other person, made an application for permission to sue in forma pauperis. In this suit he had prayed for possession also.

(3.) THE learned Civil Judge dismissed the application on the ground that the decision in the earlier suit operated as res judicata and it was not open to the applicant to maintain a second suit on the same cause of action. One other ground on which the application was opposed in the lower Court was that the suit was also barred by Order 2, Rule 2 of the Code of Civil Procedure. The lower court has not expressed any opinion on the second point but has given its decision on the assumption that the suit was not barred under Order 2, Rule 2, Civil P. C. The learned counsel for the respondent has conceded in this Court that the view taken by the lower Court on the point of res judicata was not correct. He has, however, argued that the suit was barred under Order 2, Rule 2, Civil P. C. Reliance has been placed on the provisions of Order 33, Rule 5 (d) of the Code of Civil Procedure in support of his contention that it was open to the lower Court to have gone into the question even at the stage of hearing the application for pauperism. Rule 5 (d) of Order 33, Civil P. C. , is as follows: