NIMAR PANDEY Vs. JAGDISH PANDEY

JUDGEMENT

(1.) This is a petition in revision under Section 115, Civil P.C. It is directed against an order passed by the learned civil Judge of Benares refusing to entertain an application for leave to sue in forma pauperis on the ground that it was barred by Rule 15 of Order 33, Civil P.C., in consequence of a previous application of the like nature having been dismissed for default. The relevant facts of the case may briefly be stated as follows:

(2.) The petitioner Nimar Pandey made an application for leave to sue in forma pauperis on 21 December 1937. The Court directed him to file a copy of his petition for being served on the Government Pleader. He complied with that order on 8 January 1938 and the Court ordered a notice to be issued to the Government Pleader and the opposite party fixing 19 February 1938, presumably for the hearing of the application. The matter could not be heard and decided on that date because the applicant failed to file the necessary notices to be served on the Government Pleader and the opposite party. The case was consequently adjourned to 26 March 1938. On that date the case was again postponed to 21 May 1938, because the report expected from the Government Pleader had not been received. There was another adjournment of the case on the same ground and it was ultimately taken up on 28 May 1938. It is not clear from the order sheet of that date whether the Government Pleader and the opposite party were present, but the fact remains that the applicant was found absent. It appears, however, that the Government Pleader had made an application to the Court praying for further time in order to complete his inquiry into the pauperism of the applicant. In spite of that application fey the Government Pleader, the Court proceeded to dismiss the application for default of appearance on the part of the applicant. It is important to note that the Court did not award any costs to the Government Pleader or the opposite party from which it may safely be inferred that they were not present when the case was taken up. On 14 November 1938, Nimar Pandey made another application with the same allegations and in respect of the same cause of action. This application was opposed by the opposite party on the ground that it was barred by Rule 15, Order 33, Civil P.C. The learned civil Judge has allowed this objection to prevail and has consequently rejected the application summarily; hence the present petition in revision.

(3.) The ground upon which the learned civil Judge has based his order is that the dismissal of the previous application for default must, in the light of certain authorities, be deemed to be a dismissal under Rule 7, Sub-rule (3), Order 33, Civil P.C., and hence the second application was barred by Rule 15, Order 33. The authorities which compelled him to arrive at that conclusion are, Khondkar Ali afzal V/s. Purna Chandra , Rajendranath V/s. Thushtamayee Dasee , Ram Lakhan V/s. Kishore Lal ( 33) 20 A.I.R. 1933 Oudh 534 and Baliram Shukul V/s. Mt. Sitabai Shukul ( 35) 22 A.I.R. 1935 Nag. 168. The Oudh and Nagpur cases are quite irrelevant to the question which arises for consideration in the present case, namely the legal effect of a dismissal for default after a notice is issued to the Government Pleader and the opposite party under Rule 6, Order 33, Civil P.C., They were concerned only with the general question as to whether the rejection of an application to sue in forma pauperis did or did not bring into operation the bar of Rule 15, Order 33. It is now well settled by unanimous authority that the refusal contemplated by Rule 15, Order 33 must be a refusal under Sub-rule (3) of Rule 7. The two Calcutta cases referred to by the learned civil Judge no doubt lend support to his view, but for reasons which I shall presently state I am unable to accept it. In Khondkar Ali afzal V/s. Purna Chandra , an application to sue in forma pauperis was dismissed for default of appearance on the part of the applicant when the case came on for hearing under Rule 7, Order 33, Civil P.C. He made another application of the like nature which was entertained by the Court in spite of an objection having been taken by the opposite party that it was barred by Rule 15, Order 33. It was contended on behalf of the opposite party that the Court had no jurisdiction to entertain it, while it was urged on behalf of the applicant that there was a distinction between a refusal and a dismissal for default. The learned Judges who decided the case in Khondkar Ali afzal V/s. Purna Chandra summarily rejected the applicant's contention with the following observation: We do not think that there is any point in such contention. It seems to us that Rule 15, Order 33 is imperative and shows that if an application is rejected or refused the second application to sue in forma pauperis cannot be entertained.