1. This is an application by the plaintiffs, who instituted a suit in forma pauperis in the court of the Subordinate Judge, Deoghar, in 1963, being Title (Pauper) Suit 28 of 1963. That suit was for declaration of title and recovery of possession in respect of 58.45 acres of land and also for recovery of 450 maunds of paddy the suit was dismissed for default on 13th of May, 1964, under O. 9, R. 3 of the CPC as neither party appeared on that date when the suit was called on for hearing. The petitioners made an application for restoration of the suit, but that too was rejected.
2. The present suit giving rise to this application was filed thereafter with an application for permission to sue in forma pauperis, and it was numbered as Miscellaneous Case 12 of 1965. The defendant opposite party, Thakur Shyama Charan Lal, contested the proceeding and denied that the plaintiffs were paupers and did not have the capacity to pay the court-fee required for the plaint. The learned Subordinate Judge decided the miscellaneous case in favour of the defendant on a number of grounds, and held that the plaintiffs could not be granted permission to prosecute the suit in forma pauperis. This application is directed against that order. The first question raised before me by learned counsel for the parties is in regard to the view of the court below as to whether O. 33, R. 15 of the CPC could be a bar to the maintainabihty of the present application for the same relief of permission to sue in forma pauperis Learned Subordinate Judge has taken the view that it is so, inasmuch as the Pauper Miscellaneous case in Title Suit 28 of 1963 was dismissed. When the said Title suit itself was dismissed on 13th May, 1964, the result of that would be that although it was a dismissal for default, order 33, R. 15 of the CPC would still be applicable and another application for permission to sue in forma pauperis would not be maintainable.
3. Mr. Shambhu Barmeshwar Prasad appearing for the petitioners has urged that the learned Subordinate Judge was in error, inasmuch as O. 9 of the Code would apply to such a case as the suit was already instituted and numbered he has urged in support of his argument that O. 9 of the Code could be applicable. This would also mean that the dismissal of the suit and the pauper application in the circumstances of that case would be one under O. 9, R. 3 of the Code, as the learned Subordinate Judge purported to do, and, it that would be so, another suit would be Competent under O. 9, R. 4 of the Code. In support of that, he has referred to a number of decisions: T.S Subbaraya Devai v. R. Sundaresa Devai, AIR 1933 Mad 5: Krishna Rao v. Janaki Ammal, AIR 1939 Mad 681; Bank of Behar Limited v. Ramchanderji Maharaj, AIR 1929 Pat 637 and Periyasami Padayachi v. Minor Ulaganathan, AIR 1949 Mad 162 and today he has also cited a Full Bench decision of this Court in Matuki Mistry v. Kamakhaya Prasad, AIR 1958 Pat 264.
4. In my opinion, however, it is not necessary to scrutinise the decisions on this point elaborately for the purpose of deciding the controversy in this application, because it is obvious that assuming that with the filing of the pauper application the title suit also must be deemed to have been instituted, nevertheless the suit and the miscellaneous case as a part of it were dismissed Considerations which would arise in the case of the dismissal of the miscellaneous case for declaration of the petitioners as pauper would equally, be invoked even if it were or were not to be treated as dismissal of the suit itself. Even assuming that a fresh suit would lie under O. 9, R. 4 of the Code, that would not be the revival of the miscellaneous case itself. If, therefore, O. 33, R. 15 of the Code would be a bar to the maintainability of the present application, that bar would be operative whether the filing of the application for permission to sue as a pauper together with the plaint of the suit is to be treated as the institution of the suit itself or the miscellaneous, case is to be treated as independent of the suit. If O. 33, R. 15 would be a bar should such a proceeding be treated as a miscellaneous proceeding, it would equally apply whether the miscellaneous application is a part of the suit itself. The contention, therefore, that a fresh suit would be competent would not affect the consideration of the question whether O. 33, R. 15 would stand as a bar to the present application or not.
5. Learned counsel for the parties have mainly stressed the question of the application of O. 33. R. 15 of the CPC. Mr. Shambhu Barmeshwar Prasad appearing for the petitioners has urged that it does not apply. He has conceded that if the application for permission to sue as a pauper had been dismissed on contest under O. 33, R. 7 of the CPC, O. 33. R. 15 would, no doubt, stand as a bar to the filing of another application but when there is a dismissal of such an application for default, it cannot be regarded as dismissal under O. 33, R. 7 at all. It is in substance a dismissal under O. 33. R. 5 of the Code. Order 33, Rule 5(b) provides that the Court shall reject an application for permission to sue as a pauper where the applicant is not a pauper where no opportunity was given to the applicant or the applicant did not avail himself of the opportunity to adduce evidence or that stage was not reached, as in this case, it must be regarded in law as a dismissal under O. 33, R. 5, for O. 33 R. 7 speaks in these terms:
“(1) On the day so fixed or as soon thereafter as may be convenient, the Court shall examine the witnesses (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 R. 5.
(3) The Court shall then either allow or refuse to allow the applicant to sue as a pauper.”
6. It has been contended that it is obligatory for the Court, before R. 7 of O. 33 could apply, to fix a date of hearing, examine witnesses and hear arguments and then allow or refuse to allow the applicant to sue as a pauper. In a case where this has not been done, O. 33, R. 7 cannot be taken to be relevant and such a dismissal must fall under the residuary provision of O. 33, R. 5, i.e, dismissal for any reason other than one which can arise only when an opportunity has been given to the applicant on a date fixed to adduce evidence and advance argument in support of his case. Reference has been made in this connection to the following decisions: Chinnammal v. Papathi Ammal, AIR 1925 Mad 986; Krishnamoorthy v. Ramayya, AIR 1926 Mad 875; Rajendranath Paramanik v. Tushtamayee Dasee, AIR 1933 Cal 549; Mt. Umrao Jahan Begam v. Hakimunnissa, AIR 1942 Oudh 169; Nimar Pandey v. Jagdish Pandey, AIR 1941 All 166 and Province of Orissa v. Dibyasingh Nand, AIR 1941 Pat 594.
7. In my opinion, it is not necessary again to deal with all the cases of the other High Courts. In this connection it may be stated that the facts in those cases are distinguishable although the observations in some of those judgments are to the effect that the dismissal of a prior application for default, in terms, does not operate as a bar under O. 33. R. 15 for a fresh application to sue as pauper. The decision of this Court in AIR 1941 Pat 594 (ibid) which is a Division Bench ruling, however, clearly lays down, following the observation of Jack, J. in ILR 60 Cal 630 : (AIR 1933 Cal 549), that where after service of notice under O. 33, R. 6 the petitioner did not appear and his application was dismissed for default, the order of dismissal would operate as a bar under O. 33, R. 15 of the CPC. In the present case, it has been clear from the order sheet that the notice under O. 33, R. 6 was served on the opposite party and yet, on the date fixed for hearing, the applicants did not appear in the miscellaneous case to take proper steps. In such circumstances, it must be held that, when there was default, the dismissal was under O. 33, R. 7 and O. 33, R. 15 would apply to such a case.
8. The same view has been expressed by a Division Bench of Calcutta High Court in Harendra Kumar Basu v. Contai Bus Syodicate Ltd., AIR 1958 Cal 182 wherein it has also been laid down that even if an application is dismissed for default after the enquiry has reached the stage of R. 7, a fresh application will be barred under O. 33, R. 15. What is necessary to be seen is whether that stage has reached and whether witnesses have been examined. In the present case, as I have already stated, it is not denied that the stage was reached because notice under O. 33, R. 6 was served on the opposite party. In the result, therefore, it must be held that the dismissal of the application was under O. 33, R. 7 of the CPC and O. 33, R. 15 will be applicable and hence the fresh application for pauperism on this ground would not be maintainable.
9. Learned counsel for the petitioner has next urged that in any case the present application is for a cause of action different from that for which the first application in Title Suit 28 of 1963 was filed. That suit was for recovery of the amount of maintenance payable to the petitioners for the year 1963. The present suit, however, is for recovery of the amount of maintenance for the years 1963, 1964 and 1965. It is true, no doubt, that the petitioners claimed in that suit also that they had a right for possession of the land in suit in terms of the agreement between the parties, because the defendant failed to give to the petitioners 450 maunds of paddy. But that was not an independent relief as it was based upon failure to pay the maintenance for those years. The period of default in payment and the first suit being for one year only, and the present suit being for three years, the cause of action in this suit is different from that in the previous suit.
10. Mr. Guneshwar Prasad for the opposite party has urged that it is not so because the maintenance for the year 1963 is common to both the suits and in so far as the relief for recovery of possession is concerned, it is common to both the suits. That, no doubt, is a correct submission. But O. 33, R. 15 is a technical bar to a remedy and unless the requirement of that rule is strictly fulfilled, it would be unjust to penalise the applicant who, in fact, may be a pauper unable to pay court-fee and seek justice, by depriving him of the privilege of conducting a suit without having to pay court-fee.
11. Mr. Shambhu Barmeshwar Prasad has relied upon a decision of the High Court of Calcutta in support of his contention that in similar circumstances a Division Bench of that Court consisting of Sir Asutosh Mookerjee and Panton, JJ. in Ratnamala Dasi v. Kamakshya Nath Sen, 31 Cal LJ 351 : (AIR 1920 Cal 632) held that O. 33, R. 15 did not constitute a bar. That was a case by a lady for recovery of maintenance from her husband. The suit giving rise to the application in revision in the High Court was for recovery of maintenance from April, 1916 to the date of institution of the suit. Prior, to that, however, there was another suit instituted by her in forma pauperis for recovery of the amount of maintenance from April, 1916 to the date of the institution of the suit. That application was refused, however, on the ground that the allegation in the plaint did not show a cause of action. The second suit was filed more than 2 years after the first suit, in which was included the amount of maintenance not only of the previous suit but also for the subsequent period. The Subordinate Judge, before whom the application for permission to sue in forma pauperis was made, disallowed it on the ground that under O. 33, R. 15 the subsequent application was barred, a similar application having been rejected before. Relying upon another decision of the Bombay High Court reported in Ranchhod Morar v. Bezanji Edulji, (1896) ILR 20 Bom 86, Mookerjee, J., examined the effect of Rr. 5, 6 and 7 of O. 33 and observed as follows:
“There is a further difficulty in the way of the opposite party. The second application is in respect of a suit in which maintenance is claimed for a period of more than two years subsequent to the date when the previous application was filed. Now a right to maintenance is a recurring right, accruing from day to day. It may be extinguished or modified by a change of circumstances. It cannot be any stretch of language be suggested that the claim to maintenance for the period subsequent to the presentation of the previous application is the same right to sue as furnished or would have furnished a cause of action for the previous application. On both these grounds, we hold that the Subordinate Judge should have dealt with the application on the merits and should not have dismissed it as barred under O. 33 R. 15”
12. With respect, I entirely agree with the observation of the learned Judge, and it must be held that the court below was in error in relying upon order 33, R. 15 of the CPC for coming to the conclusion that the present application for permission to sue in forma pauperis is not maintainable in view of the subsequent cause of action.
13. Mr. Guneshwar Prasad has, however, urged that a finding of fact recorded by the learned Subordinate Judge in this case would be conclusive against the petitioners' contention and the application must fail even on that, ground whatever view of law may be taken by this Court. Learned counsel has drawn my attention in this connection towards the end of Para 6 of the Judgment of the learned Subordinate Judge, in which he has said that “In the circumstance aforesaid I hold that the applicants have got sufficient means to pay the court-fee. The application for permission to sue as pauper is consequently rejected.”
14. Mr. Shambhu Barmeshwar Prasad has endeavoured to show that the finding of fact recorded is not in consonance with the evidence nor has the learned Judge said in clear terms that the plaintiffs had sufficient means to pay the court-fee in terms of the amount required to be paid as such. Mr. Guneshwar Prasad has, however, contended in reply that the learned Subordinate Judge has referred to a sum of Rs. 5,000 for which the husband of petitioner No. 2 was prepared to purchase 2½ bighas of Lakhraj land, which was spoken to by a Purohit of the applicants. Therefore, the contention of Mr. Guneshwar Prasad must be preferred, so far as this matter is concerned, to that urged on behalf of the petitioners by Mr. Shambhu Barmeshwar Prasad.
15. Learned counsel for the petitioners, however, has brought to my notice another aspect of the finding. It is contended that the petitioners were required by the learned Subordinate Judge to appear in the proceeding in support of their pauperism on a date which was not fixed for the hearing of the application. He has referred to the order sheet, particularly, from 19-6-65 to 15-7-65. He has pointed out that the two matters were to be considered by the learned Subordinate Judge in this connection one being the plaintiffs' application for permission to prosecute the suit as paupers and the other was the appointment of a receiver. On 19-6-65, the learned Subordinate Judge passed the following order:—
“Adbibaktaon ko sune miti 10-7-65 waste sunbai receiver niyukti sambandhi ke rakha jata hai. Isi beech pratipakshi apna show cause abashya dakhil karen.”
16. On 10-7-1965, he passed the following order:—
“Prarthi ki oar se hazri dakhil hua pratipakshi ki oar se apatti dakhil karne ke liye samaye mange hain choonld pitasin (peethasin) 1 adadhikari akasmik avakash me hain miti 5-7-65 agami adesharth upasthit kiya jae”
17. On the 15th of July 1965, the following order was passed:—
“Prarthi ki oar se hazri dakhil hua, Pratipakshi kee oar se show cause dakhil hua. Case if pukara gaya ubhae pakshon ke adhivakta upasthit hua. Sunwai prarambh huee”
18. Mr. Shambhu Barmeshwar Prasad's contention is that on the 19th of Tune 1965, there was obviously a direction that only the matter of receivership would be taken up on the 10th of July 1965 On that date, the Presiding Officer was on casual leave and as such no order was passed. On the 15th of July, show cause was filed on behalf of the opposite party, and the learned Subordinate Judge proceeded to record evidence in the pauperism proceeding as well although no intimation was given by him on the 19th of June 1985 that this matter would also be taken up on the following date, namely, 10th of July 1965. Mr. Guneshwar Prasad has, however, contended that on the 19th of June 1965 itself the learned Subordinate Judge not only passed order for the consideration of the receivership matter but he also said that show cause must be filed by the 10th of July 1965, which order continued to be operative till 15th of July 1905, and when the learned Subordinate Judge returned from casual leave, he took up both the matters.
19. That ??? no doubt so. But Mr. Shambhu Barmeshwar Prasad's argument seems to be ??? the learned Subordinate Judge's order passed on 19th of June 1965 indicated that the ??? to be taken up on the next date was ??? receivership, and so far as show cause by the opposite party was concerned, it was only to be filed. No date was fixed for the petitioners to produce their evidence in Court. ??? having been done on the 10th of July 1585, it stood over till the 15th of July 1965, and on that date, without any intimation to the petitioners that they should produce evidence, the learned Subordinate Judge started examination of the witnesses for the parties on the point of the petitioners' means to pay the court-fee required in the suit.
20. Mr. Guneshwar Prasad has, however, urged that it was not necessary for the Court to fix a date for hearing of the matter, inasmuch as immediately after the filing of the show cause, the Court was fully competent to examine witnesses, and the plaintiffs applying for permission to sue as pauper could not make a grievance that they were taken by surprise. The contention, however, appears to be incorrect in view of the wording of O. 38, R. 6 itself, which provides that where the Court sees no reason to reject the application on any of the grounds stated in R. 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 begins with the words “On the day of fixed or as soon thereafter as may be convenient, the Court shall examine the witnesses”
21. It is clear, therefore, that the contention of Mr. Guneshwar Prasad that it was not necessary for the Court to fix a date on which evidence would be recorded, is obviously incorrect as it runs counter to the clear provision of Rr. 6 and 7 of O. 38, as I have quoted above. The same having not been done, the order passed by the learned Judge recording the finding against the petitioners' case of pauperism cannot stand.
22. Mr. Guneshwar Prasad has urged, however, that no grievance was made by the petitioners before the learned Subordinate Judge on this matter and, if anything, they agreed to adduce their evidence on the 15th of July 1965 without any demur on their part. Mr. Shambhu Barmeshwar Prasad has, however, drawn my attention to the affidavit of the petitioners in this Court that actually the lawyer for them in the Court below protected against evidence being recorded on the 15th July, 1965, which was not a date fixed for taking evidence.
23. There is no counter-affidavit on behalf of the opposite party to the statement made on oath in this petition. In that view of the matter, therefore, the statement of the petitioners must be accepted as correct. Even as it is, however, in the absence of clear agreement on behalf of the petitioners, the violation of R. 6 of O. 33, as the wording shows will be a fatal defect inasmuch as it would be indispensably necessary for the Court to fix a date for hearing of the proceeding, particularly for recording of evidence because unless a date is fixed, the plaintiff cannot be expected to bring in his witnesses or documents in Court and the Court may not proceed to examine witnesses or to record evidence in the case. In my view of the matter, therefore, I am satisfied that the finding recorded by the learned Subordinate Judge is illegal and must be set aside.
24. The application succeeds and the case is remanded to the learned Subordinate Judge for taking evidence on pauperism of the petitioners on a date to be fixed by him after remand and to dispose of the matter in accordance with law. In the circumstances of the case, there will be no order for costs.
EJ/TVN/G.G.M
25. Petition allowed.