Ghulam Mohd. Mughlu vs Ali Mohd.

Mian Jalaluddin, J.—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.

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 Harendra Kumar Basu Vs. Contai Bus Syndicate Ltd. and Others, and AIR 1960 Nag 82.

Mr. S. C. Kaul the counsel for the petitioner has. on the other hand, submitted that by virtue of Section 141 of the CPC the provisions of Order

9 C. P. C. would apply. In support of his contention he has cited T.S. Subbaraya Devai Vs. R. Sundaresa Devai, and AIR 1954 Sau 65.

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 CPC 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 CPC 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.

I am therefore, inclined to hold that an application for restoration of an application for leave to sue in forma pauperis dismissed for default will

lie. The objection of the respondent is hereby overruled.

The application for restoration was made on the same day. There appears sufficient cause for restoration as disclosed in the application itself. I

would, therefore, allow this application and restore the application to its original number on payment of Rs. 30/- as costs which will be paid up to

or on 14-6-1971 when the case will come up for further proceedings.

Application allowed.