UMABAI SHANKAR BORGAONKAR Vs. SHANKAR HARI BORGAONKAR

JUDGEMENT

(1.) THIS appeal raises a question of the construction of Order XXXIII, Rule 15.The question arises in this way. The plaintiff-appellant is the wife of defendant-respondent. She made an application to sue in forma pauperis claiming separate maintenance and residence. The application was opposed by the husband on the ground that she was not a pauper and it was rejected and the plaintiff was ordered to pay the costs of the opponent. Notice had been sent to the Government Pleader, but he did not appear, and therefore no costs were incurred on behalf of Government.

(2.) ORDER XXXIII, Rule 15, is in these terms : 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) incurred by the Provincial Government and by the opposite party in opposing his application for leave to sue as a pauper

(3.) LEDGARD v. Bull is a leading case, the authority of which cannot be questioned. It has been argued for the appellant, with great force we think, that the ruling covers this case and cannot be distinguished. It cannot be gainsaid that the Subordinate Judge here was competent to entertain and try the plaintiff's suit for maintenance, provided it was competently instituted, which it would have been if the costs of the defendant had been first paid. Therefore, it would seem on the principle laid down in Ladgard v. Bull it was not a case of inherent want of jurisdiction in the Court, but an irregularity in the initial procedure capable of being waived.