Province of Orissa vs Dibyasingh Nand

Chatterji, J.—This is an application by the Province of Orissa against an order passed under Order 33, Rule 15, Civil P.C., The opposite party had filed an application for leave to sue as a pauper which was registered as Miscellaneous case No. 46 of 1938. Four persons were arrayed as opposite party in that miscellaneous case. It appears that notice could not be served on opposite party 4 in that case and time was given to the present opposite party on several occasions for taking steps for service of notice on opposite party 4 in that case. The Government Pleader opposed the previous application. Ultimately on 28th January 1939, the following order was passed:

Petitioner takes no steps to-day and he is absent on call. His pleader is also not to be found here and his clerk says that he has no instruction. Ordered that the case be dismissed for default. No costs.

The opposite party then filed a fresh application for leave to sue as a pauper on 26th March 1939. In this case the Government Pleader appeared and opposed the application on the ground that it was barred under the provisions of Order 38, Rule 15. That rule provides 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 by him in respect of the same right to sue; but the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such right, provided that he first pays the costs (if any) incurred by the Government and by the opposite party in opposing his application for leave to sue as a pauper.

The learned Subordinate Judge has held that the previous order of dismissal for default passed on 28th January 1939, does not amount to "an order refusing to allow the applicant to sue as a pauper" as contemplated by Rule 15. It is against this order that this application is presented by the Province of Orissa.

The learned Advocate General contends that notice having been in fact served on three of the opposite party in the previous case and also the Government Pleader, the case had reached the stage when the Court could pass an order under Rule 7 of Order 83. It is not disputed that an order refusing to allow the applicant to sue as a pauper within the meaning of Rule 15 must be an order passed under Rule 7 Sub-rule (8). Now, Rule 7 has got to be read with Rule 6. Rule 6 runs as follows:

Where the Court sees no reason to reject the application on any of the grounds stated in Rule 5, it shall fix a day (of which at least ten days'' clear notice shall be given to the opposite party and the Government pleader) for receiving such evidence as the applicant may adduce in proof of his pauperism, and for hearing any evidence which may be adduced in disproof thereof,

Rule 7 then provides:

(1) On the day so fixed or as soon thereafter as may be convenient, the Court shall examine the witness (if any) produced by either party, and may examine the applicant or his agent, and shall make a memorandum of the substance of their evidence.

(2) The Court shall also hear any argument which the parties may desire to offer on the question whether, on the face of the application and of the evidence (if any) taken by the Court as herein provided, the applicant is or is not subject to any of the prohibitions specified in Rule 5.

(3) The Court shall then either allow or refuse to allow the applicant to sue as a pauper.

The question really turns on whether the order of 28th January 1989, which was passed in the previous miscellaneous case amounts to an order falling under Sub-rule (3) of Rule 7. Reading Rule 6 and 7 together, it is quite clear that the stage of Rule 7 is not reached unless notice is given to the opposite party and the Government Pleader as provided in Rule 6. "Opposite party" here obviously means the whole body of opposite party, if there be more than one. Prom the very nature of a proceeding under Order 83 the Court cannot hear evidence as to pauperism as against some only of the whole body of opposite party. Opposite party 4 in the previous miscellaneous case not having been served, the stage of Rule 7 was not reached. It is true that 28th January 1939 was fixed for disposal of the case, but on that day no notice having been served on opposite party 4, the Court could not proceed to hear evidence.

The learned Advocate-General relies on the decisions in Rajendranath Paramanik Vs. Tushtamayee Dasee, Khondkar Ali Afzal Vs. Purna Chandra Tewari and Others, and Baroda Dasi v. Upendra Nath Mandal 0A.I.R. 1919 Cal. 330 . The decision in Rajendranath Paramanik Vs. Tushtamayee Dasee, really goes against the contention of the petitioner because it was held there that:

Where an order rejecting a previous application to sue in forma pauperis was made ex parte for default in payment of process fee, when the case had not reached the stage contemplated by Order 83, Rule 7, Civil P.C., such an order cannot be regarded as an order refusing to allow the applicant to sue as a pauper within the meaning of Order 33, Rule 15 of the Code, so as to bar any subsequent application of the like nature.

The learned Advocate-General, however, relies upon certain observations from the judgment of Jack J., in that case where it was pointed out that if after service of notice under Order 33, Rule 6 the petitioner did not appear and his application was dismissed for default, the order of dismissal would operate as a bar under Order 33, Rule 15. The notice, as already indicated, must be served on the whole body of opposite party.

In the cases in Khondkar Ali Afzal Vs. Purna Chandra Tewari and Others, and Baroda Dasi v. Upendra Nath Mandal AIR 1919 Cal. 330 notice was, as a matter of fact, served under Rule 6 of Order 33, and therefore the case had reached the stage of Rule 7. These cases are therefore of no assistance.

In my opinion, the order of dismissal for default dated 28th January 1989 does not amount to "an order refusing to allow the applicant to sue as a pauper" within the meaning of Rule 15 of Order 33, and the decision of the learned Subordinate Judge is right. The next contention raised by the learned Advocate-General is that in any case the learned Subordinate Judge was not justified in awarding costs against the Government. Mr. S.N. Sen Gupta appearing for the opposite party frankly concedes that he cannot support this part of the order. It must accordingly be set aside.

In the result I would allow the application to this extent: that the order for costs passed by the Court below will be set aside. In other respects the order will stand. There will be no order for costs in this Court.

Dhavle J.

I agree. Though an order refusing to allow the applicant to sue as a pauper is to act as a bar, it is obviously an order passed under Rule 7, and that contemplates, as is to be clearly seen from Rule 6, service of notice on the opposite party. The subject-matter of the enquiry at this stage is to be pauperism, and it is impossible to have one finding on this question as against those members of the opposite party who have been served and another as against those who have not yet been served but may be served later on and may, in their own turn, be entitled to a decision in their presence. The learned Advocate-General has referred to a number of cases none of which, however, happens to be really in point. We have here an opposite party consisting of four members, of whom three were served and one was not. The order passed on 28th January 1989, dismissing the first application for permission to sue in forma pauperis, cannot, it seems to me, be regarded from any point of view as an order passed under Rule 7. Specific authority for such an order is wanting, but it must be taken to have been passed in the exercise of the inherent jurisdiction of the Court taken with appropriate modifications, by way of analogy, of the provisions of Order 9. The Advocate-General pointed out that under Order 9, Rule 8 it is possible to dispose finally of a suit in which the plaintiff defaults in favour at any rate of those defendants who are present: but, as I have already observed, it is impossible to take up that position as regards the question of pauperism which must be pronounced once for all in the presence (actual or otherwise) of all the members of the opposite party.