RADHIKA PRASAD LAL Vs. SHYAMA CHARAN LAL

JUDGEMENT

(1.) This is an application by the plaintiffs, who instituted a suit in forma pauperis the court of the Subordinate Judge, Deoghar, in 1963, being Title (Pauper) Suit 28 of 1963. That suit was for declaration of title and recovery of possession in respect of 58.45 acres of land and also for recovery of 450 maunds of paddy The suit was dismissed for default on 13th of May, 1964, under Order 9, Rule 3 of the Code of Civil Procedure as neither party appeared on that date when the suit was called on for hearing. The petitioners made an application for restoration of the suit, but that too was rejected. The present suit giving rise to this application was filed thereafter with an application for permission to sue in forma pauperis, and it was numbered as Miscellaneous Case 12 of 1965. The defendant opposite party, Thakur Shyama Charan Lal, contested the proceeding and denied that the plaintiffs were paupers and did not have the capacity to pay the court-fee required for the plaint. The learned Subordinate judge decided the miscellaneous case in favour of the defendant on a number of grounds, and held that the plaintiffs could not be granted permission to prosecute the suit in forma pauperis. This application is directed against that order

(2.) The first question raised before me by learned counsel for the parties is in regard to the view of the court below as to whether Order 33, Rule 15 of the Code of Civil Procedure could be a bar to the maintainability of the present application for the same relief of permission to sue in forma pauperis Learned Subordinate Judge has taken the view that it is so, inasmuch as the Pauper Miscellaneous case in Title Suit 28 of 1963 was dismissed. When the said Title suit itself was dismissed on 13th May 1964, the result of that would be that although it was a dismissal for default. Order 33, Rule 15 of the Code of Civil Procedure would still be applicable and another application for permission to sue in forma pauperis would not be maintainable Mr. Shambhu Barmeshwar Prasad appearing for the petitioners has urged that the learned Subordinate Judge was in error, inasmuch as Order 9 of the Code would apply to such a case as the suit was already instituted and numbered He has urged in support of his argument that Order 9 of the Code could be applicable. This would also mean that the dismissal of the suit and the pauper application in the circumstances of that case would be one under Order 9, Rule 3 of the Code, as the learned Subordinate Judge purported to do, and, if that would be so, another suit would be competent under Order 9, Rule 4 of the Code. In support of that, he has referred to a number of decisions: T.S. Subbaraya Devai v. R. Sundaresa Devai, AIR 1933 Mad 5; Krishna Rap v. Janaki Ammal, AIR 1939 Mad 681; Bank of Behar Limited v. Ramchanderji Maharaj, AIR 1929 Pat 637 and Periyasami Padayachi v. Minor Ulaganathan, AIR 1949 Mad 162 and today he has also cited a Full Bench decision of this Court in Matuki Mistry v. Kamakhaya Prasad, AIR 1958 Pat 264. In my opinion, however, it is not necessary to scrutinise the decisions on this point elaborately for the purpose of deciding the controversy in this application, because it is obvious that assuming that with the filing of the pauper application the title suit also must be deemed to have been instituted, nevertheless the suit and the miscellaneous case as a part of it were dismissed Considerations which would arise in the case of the dismissal of the miscellaneous case for declaration of the petitioners as pauper would equally be invoked even if it were or were not to be treated as dismissal of the suit itself. Even assuming that a fresh suit would lie under Order 9, Rule 4 of the Code, that would not be the revival of the miscellaneous case itself. If, therefore, Order 33, Rule 15 of the Code would be a bar to the maintainability of the present application, that bar would be operative whether the filing of the application for permission to sue as a pauper together with the plaint of the suit is to be treated as the institution of the suit itself or the miscellaneous case is to be treated as independent of the suit. If Order 33, Rule 15 would be a bar should such a proceeding be treated as a miscellaneous proceeding, it would equally apply whether the miscellaneous application is a part of the suit itself. The contention, therefore, that a fresh suit would be competent would not affect the consideration of me question whether Order 33, Rule 15 would stand as a bar to the present application or not.

(3.) Learned counsel for the parties have mainly stressed the question of the application of Order 33, Rule 15 of the Code of Civil Procedure. Mr. Shambhu Barmeshwar Prasad appearing for the petitioners has urged that it does not apply. He has conceded that if the application for permission to sue as a pauper had been dismissed on contest under Order 33, Rule 7 of the Code of Civil Procedure, Order 33, Rule 15 would, no doubt stand as a bar to the filing of another application. But when there is a dismissal of such an application for default, it cannot be regarded as dismissal under Order 33, Rule 7 at all. It is in substance a dismissal under Order 33, Rule 5 of the Code. Order 38, Rule 5 (b) provides that the Court shall reject an application for permission to sue as a pauper where the applicant is not a pauper. Where no opportunity was given to the applicant or the applicant did not avail himself of the opportunity to adduce evidence or that stage was not reached, as in this case, it must be regarded in law as a dismissal under Order 33, Rule 5, for Order 33, Rule 7 speaks in these terms: