JODHESHWAR PRASAD SINGH Vs. DASHI DEVI

JUDGEMENT

(1.) This revision application is directed against an order dated the 28th January, 19 5, passed by the Subordinate Judge. Aurangabad in Miscellaneous Case No. 13 of 1974 permitting Opposite Party No. 1 to sue in forma pauperis.

(2.) An application under Order 33, Rule 1 of the Code of Civil procedure 1908 (hereinafter referred to as 'the Code) for permission to sue in forma pauperis was filed by Opposite Party No. 1 along-with the plaint. The suit was filed for declaration of title and for partition. The forma pauperis application was registered as Miscellaneous Case No. 13 of 1974 in the Court of Subordinate Judge, Aurangabad. It appears that previously, sometime in 1972, Mossamat Deoinani Kuer, mother of Opposite party No. 1 filed an application in forma pauperis along with a similar plaint like the present one. It is not disputed that during the pendency of the pauper application Deoniani Kuer died on 30-11-1972. Accordingly, on 22-2-1973 an application was filed by opposite party No. 1 for transposing her as an applicant in the pauper application. It may be stated here that the application filed by Mossamat Deomani Kuer to sue in forma paupetis was registered as Miscellaneous Case No. 24 of 1972 which on transfer was registered as Miscellaneous Case No. 6 of 1973. The prayer of opposite party No. 1 to transpose her as the applicant was allowed by order dated 14.9.1973. It is not disputed that the said Miscellaneous Case No. 24 of 1972 in which Opposite parley No. I was transposed as the applicant after the death of her mother became ready for hearing and was adjourned from time to time for one reason or the other. It is further not disputed" that On 8.2.1974 Opposite Party No. I appeared and filed an application with a prayer that the Miscellaneous case be dismissed. It appears that one of the Opposite Parties of that case appeared and filed hazari. A copy of the order of the said date has been made as annexure 2 to the present application. It shows that the miscellaneous case was dismissed for non-prosecution with costs. It appears that on the very same date opposite party No. 1 filed a fresh application in the Court of the Subordinate Judge praying for permission to sue in forma paupers along with a similar copy of the plaint which was filed by her mother with necessary changes. The said application was registered as Miscellaneous Case No. 13 of 1974. In that case various objections were raised on behalf of the petitioners. Their main objection was that the previous miscellaneous case in which opposite party No. 1 was transposed as the applicant after the death of her mother, having been dismissed for non-prosecution the present application cannot proceed in view of the provisions laid down in Order 33, Rule 15 of the Code. The court below, however, after taking evidence in the case decided it in favor of Opposite Party No. 1 allowing her to sue in forma pauperis.

(3.) Mr. Janeshwar Singh, Learned Counsel appearing in support of this application pressed only one point, namely, that the previous application under Order 33, Rule 1 of the Code having been dismissed for non-prosecution with costs by order dated 8-2-1974, the present application is barred under the provisions of Order 33, Rule 15 of the Code. Learned counsel, however, fairly conceded that under the very same provisions opposite party No. 1 could file a fresh suit in the ordinary manner in respect of such right provided opposite party No. l had,, paid the costs incurred in the previous miscellaneous case. In support of this contention, Mr. Singh relied upon Biroda Dasi v. Upendra Nath Mandal and Ors. A.I.R. 1919 Cal. 330 (2) which is a Bench decision of the Calcutta High Court, In that case an application was made seeking permission to withdraw the application in forma pauperis, but it appears that the permission was not granted and ultimately the petitioner of that case refused to prosecute the application further and accordingly it was dismissed with costs to the Opposite Party. Thereafter another application was filed which was similar to the previous application. The learned Subordinate Judge rejected the second application on the ground that similar application was rejected previously and, therefore; the petitioner could not have filed a similar application afresh. After considering the relevant rules of Order 33 of the Code their Lordships of the Calcutta High Court held as follows: