GHULAM MOHD. MUGHLU Vs. ALI MOHD.

JUDGEMENT

(1.) THIS is an application for restoration of the application for leave to sue in forma pauperis which was dismissed for default for the appearance of the applicant on 3 -6 -1970. The present application for restoration was made on the same day. when the original application was dismissed for default.

(2.) AN objection has been raised on behalf of the respondents in the case that the application for restoration does not lie as the provisions of Order 9 C. P. C. do not apply to such proceedings. That order it is submitted, applies only to suits and not to applications under Order 33 C. P. C. Reliance is placed on : AIR 1958 Cal 182 and, AIR 1960 Nag 82.

(3.) THE question that we are therefore called upon to decide in this case is as to whether the provisions of Order 9 C. P. C. could apply to an application for leave to sue in forma pauperis dismissed for default of appearance of the petitioner. There appears to be some controversy among the Indian High Courts on this question. The Bombay, Madras and Saurashtra High Courts have taken the view that order 9 read with Section 141 of the Civil Procedure Code can be made applicable to proceedings taken under Order 33 of C. P. C. whereas the High Court of Nagpur has laid a contrary view. To me it appears that the correct answer to the question posed before us should be in favour of invoking the provisions of Order 9 read with Section 141 of the Civil Procedure Code to an application for leave to sue in forma pauperis. By virtue of this section the procedure in regard to suits is to be followed so far as it can be made applicable in all proceedings in any court having civil jurisdiction. There is no reason why this section cannot be made applicable to applications made under O. 33 C. P. C. The authorities cited by the learned counsel for the respondent have not discussed the application of order 9 C. P. C. to an application made under order 33 C. P. C. dismissed for default. Therefore these are distinguishable.