T S SUBBARAYA DEVAI Vs. RSUNDARESA DEVAI

JUDGEMENT

(1.) This is a revision petition filed under Section 115, Civil P. C, against an order of the Subordinate Judge of Trichinopoly dated 4 September 1930 by which he restored to file a pauper petition, O.P. No. 7 of 1930, which had been previously rejected on 26 July 1930. The facts of the case may be thus briefly stated. The respondent filed an application for permission to sue in forma pauperis. This application was numbered as O.P. No. 7 of 1930 and it came on for orders on 26 July 1930. The Subordinate Judge passed the following order on that day: Petitioner had not taken steps even to summon witnesses to prove the incumbrances on his property. There is no satisfactory explanation for not doing so. Petition dismissed.

(2.) Then there was an application for restoring O.P. 7. On that the Subordinate Judge passed the following order: I am unable to construe the order of this Court dismissing the petition as one on the merits. No witnesses had been summoned to prove the incumbrances. His pleader was absent and he was unable to say what, really happened in the case. It is brought to my notice that his sister was expected by a later train with the mortgage deeds in question. Mr. Balakrishna Ayyar who appears for the petitioner says that she did turn up that day. Under these circumstances I feel I ought to give him an opportunity to prove his pauperism. The petition will be restored on petitioner paying Rs. 25 to the other side for their costs in one week.

(3.) The revision petition is against this latter order. The second petition was filed underO. 9, Rule 9 taken with Section 141 and also under Order 47, Rule 1. Mr. Vaidyanatha Ayyar who appears for the petitioner contends that neither provision of law applies to this case and that the petition is not maintainable. Now it seems to me what happened on 26 July was this. The pauper petition stood posted for that day. The vakil for the petitioner was absent. This appears from the later order. The party himself appearing must have asked for adjournment. The Subordinate Judge observed that steps were not taken even to summon witnesses to prove the incumbrances on the property. He was therefore of opinion that there were no grounds for granting adjournment. The application for adjournment was therefore refused. The pauper petition then was dismissed because it was not prosecuted. The petitioner might at least have gone into the witness-box but he did not. So that it seems to me that there were two applications on that day, one, for permission to sue as a pauper and secondly an application to have that matter adjourned. The adjournment application was refused. The other petition merely followed by a consequential order. Now it seems to me that Order 9, Rule 9 taken with Section 141 is applicable in so far as the pauper petition was dismissed for default on the first occasion. In the course of his argument Mr. Vaidyanatha Ayyar referred to the following cases: Pichamma V/s. Sreeramulu (1918) 41 Mad 286, which refers to the distinction between an order passed under Order 17, Rule 2 and an order passed under Order 17, Rule 3. If a suit is disposed of on the merits and not for default the remedy is by way of appeal. But it seems to me that in this case the pauper application was dismissed for default. The Subordinate Judge did not say that he finds that the plaintiff was not a pauper.