Jeodheshwar Prasad Singh and Others vs Sheedashi Devi and Another

S.K. Choudhuri, J.—This revision application is directed against an order dated the 28th Jan., 1975, passed by the Subordinate Judge, Aurangabad in Miscellaneous Case No. 13 of 1974 permitting opposite party No, 1'' to sue in forma pauperis.

An application under Order 33, Rule 1 of the Civil P. C., 1908 (hereinafter referred to as ''the Code'') for permission to sue in forma pauperis was filed bv opposite party No. 1 along with the plaint. The suit was filed for declaration of title and for partition, The forma pauperis application was registered as Miscellaneous Case No. 13 of 1974 in the Court of Subordinate Judge, Aurangabad. It appears that previously, sometime in 1972, Mossamat Deomani Kuer, mother of opposite party No. 1 filed an application in forma pauperis along with a similar plaint like the present (me. It is not disputed that during the pendency of the pauper application Deomani Kuer died on 30-11-1972. Accordingly, on 22-2-1973 an application was filed by opposite party No. 1 for transposing her as an applicant in the Pauper application. It may be stated here that the application filed by Mossamat Deomani Kuer to sue in forma pauperis was registered as Miscellaneous Case No. 24 of 1972 which on transfer was registered as Miscellaneous Case No. 6 of 1973. The prayer of opposite party No, 1 to transpose her as the applicant was allowed by order dated 14-9-1973. It is not disputed that the said Miscellaneous Case No. 24 of 1972 in which opposite party No. 1 was transposed as the applicant after the death of her mother became ready for hearing and was adjourned from time to time for one reason or the other. It is further not disputed that on 8-2-1974 opposite party No. 1 appeared and filed an application with a prayer that the Miscellaneous case be dismissed. It appears that one of the opposite parties of that case appeared and filed hazari. A copy of the order of the said date has been made as Annexure 2 to the present application. It shows that the miscellaneous case was dismissed for non-prosecution with costs. It appears that on the very same date opposite party No. 1 filed a fresh application in the Court of the Subordinate Judge praying for permission to sue in forma pauperis along with a similar copy of the plaint which was filed by her mother with necessary changes. The said application was registered as Miscellaneous Case No. 13 of 1974. In that case various objections were raised on behalf of the petitioners. Their main objection was that the previous miscellaneous case in which opposite party No. 1 was transposed as the applicant after the death of her mother, having been dismissed for non-prosecution the present application cannot proceed in view of the provisions laid down in Order 33, Rule 15 of the Code. The court below, however, after taking evidence in the case decided it in favour of opposite party No. 1 allowing her to sue in forma pauperis.

Mr. Janeshwar Singfi, learned counsel appearing in support of this application pressed only one point, namely, that the previous application under Order 33, Rule 1 of the Code having been dismissed for non-prosecution with costs by order dated 8-2-1974, the present application is barred under the provisions of Order 33, Rule 15 of the Code. Learned counsel, however, fairly conceded that under the very same provisions opposite party No. 1 could "file a fresh suit in the ordinary manner in respect of such right provided opposite party No. 1 had paid the costs incurred in the previous miscellaneous case. In support of this contention, Mr. Singh relied upon Baroda Dasi v. Upendra Nath Mandal AIR 1919 Cal 330 (2)) which is a Bench decision of the Calcutta High Court, In that case an application was made seeking permission to withdraw the application in forma pauperis, but it appears that the permission was not granted and ultimately the petitioner of that case refused to prosecute the application further and accordingly it was dismissed with costs to the opposite party. Thereafter another application was filed which was similar to the previous application. The learned Subordinate Judge rejected the second application on the ground that similar application was rejected previously and, therefore, the petitioner could not have filed a similar application afresh. After considering the relevant rules of Order 33 of the Code their Lordships of the Calcutta High Court held as follows:--

"Rule 15 is clear that an order refusing to allow the applicant to sue as a pauper shall be a bar to any subsequent application of a like nature by him in respect of the same right to sue, but, of course, the applicant may file a suit in the usual way on payment of fees. This Is not a case of an application being dismissed for want of appearance. The petitioner was in Court with her pleader, but under the circumstances, declined to proceed. It is now suggested that we might allow her to withdraw this and the previous application and to begin again with a third, application. That we cannot possibly do. This appears to be an order refusing to allow her to sue as a pauper, and the fact that no evidence was taken was due to the refusal of the petitioner herself to proceed."

Learned counsel also relied upon Ranchod Morar v. Bezanji Edulji (1896) ILR 20 Bom 86). In that case also the plaintiff did not proceed with the previous application for leave to sue in forma pauperis and it was rejected with costs. The plaintiff of that suit again applied for leave to sue as pauper. The said application, it appears, was allowed, as it was not opposed. During trial the Gov- ernment Pleader intervened and applied that the plaintiff should not be allowed to proceed further until the plaintiff had paid the costs incurred by Government in opposing the first application which was rejected, but the plaintiff refused to do so and thereafter the Subordinate Judge dismissed the suit with costs. When the matter went to the High Court, It was held that the order rejecting the plaintiff''s first application was an order u/s 409 of the Code and that both the applications were made in respect of the same right to sue and further that the order rejecting the first application operated as a bar u/s 413 of the Code to the entertainment of the second application.

Now coming to the facts of the present case, I have already indicated above that the miscellaneous case, namely, Miscellaneous Case No. 24 of 1972 was ready for hearing and was adjourned from time to time on one reason or the other and ultimately dismissed for non-prosecution by order dated 8-2-1974. Therefore, it is clear that the said miscellaneous case reached the stage of Rule 7 of Order 33 of the Code, In my opinion, therefore, learned counsel for the petitioners was correct in contending that at such a stage when opposite party No. 1 refused to proceed with the miscellaneous case and, therefore, it was dismissed for non-prosecution, it would amount in law to be an order of refusal of permission to prosecute the suit in forma pauperis within the meaning of Rule 7 (3) of O, 33 of the Code.

Mr. Nagendra Rai appearing on behalf of opposite party No. 1 tried to distinguish Baroda Dasi''s case AIR 1919 Cal 330 (2)) (supra) by pointing out that the petitioner of that case refused to prosecute the application after she was refused permission for withdrawal of the said application. Learned counsel contended that in the present case a fresh application under Order 33, Rule 1 of the Code was already filed on 8-2-1974 along with a similar plaint before the previous miscellaneous case, namely, Miscellaneous Case No. 24 of 1972 could be dismissed for non-prosecution. In my opinion, it will not make any difference in applying the principle of Baroda Dasi''s case (supra) in the present case. He further contended that what is bar under Order 33, Rule 15 of the Code is the subsequent application after the dismissal of the previous one. According to learned counsel, in the pre-sent case, a similar application was filed on the very same date and, therefore, Order 33, Rule 15 of the Code will not be a bar to the present application. In my opinion, this contention has no substance and is merely stated to be rejected.

For the reasons, discussed above, the application is allowed and the impugned order is set aside. In the circumstances of the case, I would make no order as to costs.