RAJENDRANATH PARAMANIK Vs. TUSHTAMAYEE DASEE

JUDGEMENT

(1.) This Rule was issued on the opposite party to show cause why an order giving leave to the plaintiff to sue as a pauper should not be set aside and why the plaintiff's suit should not be dismissed. The ground, on which this Rule has been pressed, is that the Court below ought to have held that the application of the plaintiff opposite party was barred under the provisions of Order 33, Rule 15, Civil P.C. It appears that a previous application to sue as a pauper had been made in 1930 and that application was dismissed for default, because the process fee paid for the issue of notices on the opposite party in that application as required under Order 33, Rule 6 was insufficient. It is urged, therefore that under the provisions of Order 33, Rule 15 the present application is barred. The wording of Rule 15, Order 33, is as follows: An order refusing to allow the applicant to sue as a pauper shall be a bar to any subsequent application of the like nature to be made by him in respect of the same right to sue.

(2.) The wording of this rule corresponds with the wording of Order 33, Rule 7, which says: On the day so fixed, namely, by Rule 6, or as soon thereafter, as may be convenient, the Court shall examine the witnesses (if any) produced by either party, and hear arguments and then shall "either allow or refuse the application to sue as a pauper." On the other hand the wording in Order 33, Rule 5 is that the Court shall reject the application for permission to sue as a pauper in the circumstances mentioned therein. Prima facie therefore it would appear that the subsequent application was not barred unless the previous application had been refused under Order 33, R, 7. The present Rule is supported on the authority of the decision in Ali Afzul V/s. Purna Chandra , in which it has been held that an order, rejecting an application for default, operates as a bar under Rule 15, Order 33. That case, however is distinguishable from the present case, inasmuch as there notices were actually issued on the opposite party under Rule 6 and it was only when the case came up for disposal under Rule 7 that the application was dismissed. The language used in that decision also shows that the previous order was passed under Rule 7, Order 33. In the present case, since no notices were issued on the opposite party, as required under Rule 6, no order under Rule 7 could be passed; and the order in fact passed was one dismissing the suit for default, because the pauper applicant had failed to carry out the orders of the Court under Rule 6.

(3.) It is urged that there is no real distinction here, inasmuch as the order in that case was not passed under Rule 5, as the Court has held that there does not appear any reason for the throwing out of the application under Order 33, Rule 5.