Smt. Shripati Kuer And Another v. Smt. Malti Devi And Others Opposite Parties.

1. The petitioners had filed pan per Miscellaneous Case No. 41 of 1960 against the opposite parties for permission to sue them in forma pauperis. After the formalities and the requirements of rules 4 and 5 of order 33 of the CPC (hereinafter called the “Code”) had been gone into and compile 1 with, notices were directed to be issued to the opposite parties. They were issued and served. The opposite parties appeared to contest the application of the petitioners. Eventually, the miscellaneous case was fixed for hearing on 11-2-1961. On that date, however, the petitioners took no steps. The opposite parties ??? a petition for time which was rejected as frivolous.

2. The case was called out for hearing, but none responded to repeated calls. The miscellaneous case was, therefore, dismissed for default. From the order dated 11-2-1961, it is manifest that the dismissal of Miscellaneous Case No. 41 of 1960 was at a point of time when both the parties had absented themselves and none had responded to repeated calls. It is also undisputed that the case was dismissed when the stage of adducing evidence and advancing arguments under rule 7 of Order 33 of the Code had been reached. The petitioners filed in the Court below an application for restoration of Miscellaneous Case No. 41 of 1960. They failed. Thereafter, they filed a second application under Order 33, Rule 1 of the Code, which was registered as Miscellaneous Case No. 15 of 1963. They asked permission again to sue the opposite parties in forma pauperis. This application was also resisted by them. On merits, the learned Subordinate Judge has held that the petitioners are paupers and are entitled to get permission to sue in forma pauperis. But in view of the provisions of law contained in R. 15 of Order 33 of the Code, he has held that the second application is not maintainable relying upon a Bench decision of the Calcutta High Court in Harendra Kumar Basu v. Contai Bus Syndicate Ltd., AIR 1958 Cal 182.

3. The point is not free from difficulty. There are divergent decisions of the various High Courts in this regard. In most of the cases, no argument seems to have been advanced as to whether a Miscellaneous case filed under Order 33, Rule 1 will attract the procedure contained in Order 9 by virtue of the law engrafted in section 141 of the Code. At any rate, this point does not seem to have been decided either way in any of the cases.

4. In Ranchod Morar v. Bezanji Edulji, (1898) ILR 22 Bom 86, the applicant, who wanted permission to sue in forma pauperis, did not press his application when the stage of its hearing was reached within the meaning of Rule 7 of Order 33 of the present Code. The case was dismissed for default. There it was held by the Bombay High Court that a second application was not maintainable. Following this decision in an earlier Bench decision of the Calcutta High Court in Atul Chandra v. Peary Mohan, AIR 1917 Cal 696, some observation were made indicating that even if, to use a short expression for the sake of brevity, the pauper application is dismissed for default at the stage when the case is for consideration of Rule 5 of Order 33 of the Code. Rule 15 is a bar.

5. But later Calcutta cases have explained that case and the cursus curiae of the Calcutta High Court is that if the pauper application is dismissed for default at a stage when the case is fixed for hearing under Rule 7 of Order 33, it is tantamount to refusal of the application within the meaning of Rule 15, and that being so, a second application is barred. No distinction has been made in the Calcutta cases between the dismissal in absence of both the parties or that when the applicant was absent and the opposite party was present and ready to adduce evidence. Those Calcutta cases are Baroda Dasi v. Upendranath Mandal, AIR 1919 Cal 330(2), Khondkar Ali Afzal v. Purna Chandra Tewari, AIR 1924 Cal 1039, and the one which I have already referred to, namely, AIR 1958 Cal 182.

6. As against the Calcutta view and after distinguishing the Bombay decision, three High Courts have said that the dismissal of a pauper application, even when it had reached the stage of rule 7 of Order 33 of the Code, for default does not bring in the bar of rule 15 to the maintainability of the second application on the same cause of action or in respect of the same right. These cases are Chinnamal v. Papathi Ammal, AIR 1925 Mad 986, Krishnamoorthy v. Ramavya, AIR 1926 Mad 875, Mst. Chandrabhagabai v. Ramchandra, AIR 1947 Nag 14, Ganesh Prasad v. Radheshyam, AIR 1950 Nag 82 and Nimar Pandey v. Jagdish Pandey, AIR 1941 All 166.

7. The Patna decisions, so far my attention has been drawn, are only two: Province of Orissa v. Dibyasingh Nand, AIR 1941 Pat 594 and Radhika Prasad Lal v. Shyama Charan Lal, AIR 1966 Pat 387. The former is the decision of a Bench of this Court. There actually the stage of Rule 7 for disposal of the pauper application had not been reached, inasmuch as notices to all the opposite parties had not been served. It was, therefore, held that rule 15 was not a bar to the maintainability of the second application when the first application was dismissed for default in absence of the applicant. But while discussing this point, observations in the nature of obiter dicta were made in line of the Calcutta view. As I read the judgment of Chatterji, J., who delivered the main judgment of the Bench, those earlier Calcutta cases were merely referred to for the sake of distinguishing the case before their Lordships from those cases. There is nothing in the judgment of his Lordship to indicate that the view taken by the Calcutta High Court was being approved. Dhavle, J. while agreeing with Chatterji, J. added a few words of his own, and there again it is to be noticed that he referred to the Calcutta view thus:

“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.”

8. That is to say it was merely for the sake of distinguishing the facts of the case of The Province of Orissa, AIR 1941 Pat 594 from those of the Calcutta cases that reference was made to the Calcutta view. The decision of any other High Court was neither referred to nor discussed. In my opinion therefore, the Bench decision of the Patna High Court is no authority for the proposition that as soon as a pauper application is dismissed for default, no matter in absence of the applicant only or in absence of both the parties, the bar to the maintainability of the second application as provided in R. 15 is attracted.

9. It is, no doubt, true that the learned Single Judge who decided Radhika Prasad Lal's case, AIR 1966 Pat 387 has referred to the Calcutta cases and has come to the conclusion that when the pauper application was dismissed for default at the statge when the case had reached for adducing of evidence and hearing of argument under Rule 7, the dismissal would attract the bar contained in Rule 15. Of course the application in revision at the instance of the person who wanted permission to sue in forma pauperis was allowed on a different ground. From the facts stated in the earlier portion of the judgment, it is not clear, however, as to at what stage the previous application had been dismissed.

10. It seems to me that the previous cases, either after rejection of the pauper application or on its being allowed, had been registered as Title Suit (Pauper) No. 28 of 1963, and that suit was dismissed for default under Order 9, Rule 3 of the Code, as clearly mentioned in the first paragraph of the judgment of the learned Single Judge. Then the second pauper application, which was registered as Miscellaneous Case No. 12 of 1965, was the subject matter of consideration before his Lordship. In that context, observations were made that second application was not maintainable in view of the bar provided in Rule 15 of Order 33 of the Code.

11. But as I have said above if the dismissal of Title Suit No. 28 of 1963 was under Order 9, Rule 3 of the Code, the point did not precisely fall for consideration, nor was it decided as to whether if the previous pauper application was dismissed for default in absence of both parties, what would be the result, whether rule 15 would be a bar to the maintainability of the application or not?.

12. In my opinion, the provisions of O. 9 of the Code can and should be applied as far as they can be made applicable to a proceeding instituted on the finding of an application under Order 33, Rule 1 of the Code. In one sense, it is a suit, as held by the Full Bench of this Court in Matuki Mistry v. Kamakhya Prasad, AIR 1958 Pat 264, because under section 26 of the Code, it is a suit instituted by the presentation of an application under O. 33, Rule 1, that is, in the manner as prescribed. Order for injunction, as held by the Full Bench can be made even though the stage of Rule 8 of Order 33 has not been reached.

13. In Bihari Sahu v. Mt. Sudama Ktier, AIR 1938 Pat 209, the provisions of Order 6, R. 17 of the Code were made applicable for allowing amendment of a pauper application. Even assuming that a pauper application, so long it is not allowed and registered under Rule 8 of Order 33 of the Code, is not a suit in the strict sense of the term and the provisions of O. 9, in terms, cannot be made applicable, it is in my view quite reasonable and legitimate to say that before the application is registered as a suit, it is an original proceeding in the nature of a suit in the Court of civil jurisdiction. So on the principles laid down by the Privy Council in the leading case of Thakur Prasad v. Sheikh Fakir Ullah, (1895) ILR 17 All 106, the procedure provided in Order 9 of the Code can and should be followed in the matter of disposal of pauper application in so far as it is not inconsistent with the special provisions made in Order 33 itself.

14. There is no rule in order 33 which, in terms, is attracted in a situation of default of parties. Rule 7 speaks about disposal of the case on merits, and that led the learned Judges of the three High Courts to take the view that rule 15 is not a bar to the maintainability of a second pauper application if the first one has not been heard and refused on merits. I, for one, do not propose to say that I am wholly in respectful agreement with that view. The matter left at that, I would be well advised to say, with respect, that the ratio of the Calcutta decision is correct.

15. But as I have indicated above, the difficulty is justly and reasonably solved if the provisions of Order 9 are made applicable to a case of this nature, that is to say, if the pauper application is dismissed for default in absence of both parties, the dismissal should be deemed to have been made in accordance with the law engrafted in Ride 3 of Order 9, and the remedy of the applicant would then be to apply for its restoration under Rule 4 or to file the second application which would not be barred in view of the provisions contained therein. But if the dismissal be under rule 8 of Order 9 of the Code, that is to say, in absence of the applicant, but in presence of the opposite party, the remedy of the applicant would be to apply for restoration under Rule 9; but then a application would be barred not only in view of the provisions contained in Rule 9(i), but also because Rule 15 of Order 33 of the Code will be attracted in such a case in view of the provisions of law laid down in Calcutta cases. To this extent only I respectfully agree with them.

16. I may also add that it will follow logically that if a pauper application is allowed ex parte under R. 7 in absence of the opposite party, it will be open to the opposite party to apply under Rule 13 of Order 9 of the Code for the setting aside of the ex parte order on satisfying the Court that the opposite party is entitled to such relief within the meaning of that rule.

17. I have ventured to express the view stated above being conscious of the fact that so far as this High Court is concerned, it generally follows the cursus curiae of the Calcutta High Court, and also being conscious of the fact that following a large number of decisions of the Calcutta High Court, this Court has also held that if an application under Rule 90 of Order 21 of the Code is dismissed for default the order is tantamount to refusal to set aside the sale and the remedy of the applicant is to file an appeal and the provisions of Order 9 are not attracted.

18. But I have thought it fit to draw a distinction between such an application and the application under Order 33, Rule 1 of the Code, because in Dokku Bhushayya v. Katragadda Ramakrishnayya, AIR 1962 SC 1886, the Supreme Court has laid down that an application under Order 21, Rule 90 of the Code is an application in execution, and the Privy Council has said in (1895) ILR 17 All 106 as early as 1894 that the other procedure provided in the Code is not applicable to execution proceedings in accordance with the Old section 647, which corresponded to the new section 141 of the Code.

19. In none of the cases to which I have made a reference I have found anything which militates against the view that the provisions of Order 9 of the Code are applicable to a Miscellaneous case instituted on the filing of a pauper application. I can lend some support to this view of mine from the judgment of Madhavan Nair, J. in AIR 1925 Mad 986. His Lordship did not reject the argument that the provisions of Order 9 govern proceedings under Order 33 of the Code, rather, the learned Judge proceeded to point out that “Order 9 of the CPC, contemplates two cases of dismissal for default of appearance with distinct legal consequences attaching to each dismissal. Where the dismissal is under Rule 3, Order 9, there is no bar to a fresh suit, while a dismissal under Rule 8 of Order 9, precludes a second suit. Hence, in seeking to apply Order 9 of the CPC, it is essential to ascertain under what rule was the dismissal of the first application made”. Having said so and finding that in the case before his Lordship it was not clear from the records whether the Opposite Party in the pauper application was present when the earlier application was dismissed for default, the principle of Rule 9 was not applied and it was held that second application was maintainable.

20. In the instant case, I have held above that the dismissal of Miscellaneous Case No. 41 of 1960 made on 11-2-1961 was in absence of both parties, that is to say under Rule 3 of Order 9 of the Code.

21. That being so, even though the application for its restoration which should be deemed to have been filed under Rule 4 of Order 9 failed, the second application under Order 33, Rule 1 of the Code cannot be held to be not maintainable under R. 15 of Order 33 of the Code.

22. In the result, I allow the application in revision, set aside the order of the Court below, allow Miscellaneous Case No. 15 of 1963 and direct the Court below to number and register it in accordance with the procedure provided in Order 33, Rule 8 of the Code. I shall make no order as to costs.

FK/JRM/G.G.M

23. Petition allowed.