1. This is a petition in revision under Section 115, Civil P.C. It is directed against an order passed by the learned civil Judge of Benares refusing to entertain an application for leave to sue in forma pauperis on the ground that it was barred by Rule 15 of Order 33, Civil P.C., in consequence of a previous application of the like nature having been dismissed for default. The relevant facts of the case may briefly be stated as follows:
2. The petitioner Nimar Pandey made an application for leave to sue in forma pauperis on 21st December 1937. The Court directed him to file a copy of his petition for being served on the Government Pleader. He complied with that order on 8th January 1938 and the Court ordered a notice to be issued to the Government Pleader and the opposite party fixing 19th February 1938, presumably for the hearing of the application. The matter could not be heard and decided on that date because the applicant failed to file the necessary notices to be served on the Government Pleader and the opposite party. The case was consequently adjourned to 26th March 1938. On that date the case was again postponed to 21st May 1938, because the report expected from the Government Pleader had not been received. There was another adjournment of the case on the same ground and it was ultimately taken up on 28th May 1938. It is not clear from the order sheet of that date whether the Government Pleader and the opposite party were present, but the fact remains that the applicant was found absent. It appears, however, that the Government Pleader had made an application to the Court praying for further time in order to complete his inquiry into the pauperism of the applicant. In spite of that application fey the Government Pleader, the Court proceeded to dismiss the application for default of appearance on the part of the applicant. It is important to note that the Court did not award any costs to the Government Pleader or the opposite party from which it may safely be inferred that they were not present when the case was taken up. On 14th November 1938, Nimar Pandey made another application with the same allegations and in respect of the same cause of action. This application was opposed by the opposite party on the ground that it was barred by Rule 15, Order 33, Civil P.C. The learned civil Judge has allowed this objection to prevail and has consequently rejected the application summarily; hence the present petition in revision.
3. The ground upon which the learned civil Judge has based his order is that the dismissal of the previous application for default must, in the light of certain authorities, be deemed to be a dismissal under Rule 7, Sub-rule (3), Order 33, Civil P.C., and hence the second application was barred by Rule 15, Order 33. The authorities which compelled him to arrive at that conclusion are, Khondkar Ali afzal v. Purna Chandra : AIR1924Cal1039 , Rajendranath v. Thushtamayee Dasee : AIR1933Cal549 , Ram Lakhan v. Kishore Lal ('33) 20 A.I.R. 1933 Oudh 534 and Baliram Shukul v. Mt. Sitabai Shukul ('35) 22 A.I.R. 1935 Nag. 168. The Oudh and Nagpur cases are quite irrelevant to the question which arises for consideration in the present case, namely the legal effect of a dismissal for default after a notice is issued to the Government Pleader and the opposite party under Rule 6, Order 33, Civil P.C., They were concerned only with the general question as to whether the rejection of an application to sue in forma pauperis did or did not bring into operation the bar of Rule 15, Order 33. It is now well settled by unanimous authority that the refusal contemplated by Rule 15, Order 33 must be a refusal under Sub-rule (3) of Rule 7. The two Calcutta cases referred to by the learned civil Judge no doubt lend support to his view, but for reasons which I shall presently state I am unable to accept it. In Khondkar Ali afzal v. Purna Chandra : AIR1924Cal1039 , an application to sue in forma pauperis was dismissed for default of appearance on the part of the applicant when the case came on for hearing under Rule 7, Order 33, Civil P.C. He made another application of the like nature which was entertained by the Court in spite of an objection having been taken by the opposite party that it was barred by Rule 15, Order 33. It was contended on behalf of the opposite party that the Court had no jurisdiction to entertain it, while it was urged on behalf of the applicant that there was a distinction between a refusal and a dismissal for default. The learned Judges who decided the case in Khondkar Ali afzal v. Purna Chandra : AIR1924Cal1039 summarily rejected the applicant's contention with the following observation:
We do not think that there is any point in such contention. It seems to us that Rule 15, Order 33 is imperative and shows that if an application is rejected or refused the second application to sue in forma pauperis cannot be entertained.
4. No reasons were given for arriving at that conclusion and it is to be noted that the learned Judges did not base their conclusion on the ground that the dismissal for default had taken place after service of notice on the Government Pleader and the opposite party as required by Rule 6, Order 33. The decision as it stands only shows that the learned Judges were of the opinion that there was no difference between the rejection of an application to sue in forma pauperis and its dismissal so far as the operation of the bar of Rule 15 of Order 33 was concerned. In the later case in Rajendranath v. Thushtamayee Dasee : AIR1933Cal549 the question which arose for consideration was whether an order rejecting an application to sue in forma pauperis for default on the part of the applicant in paying the process-fees and before the opposite party is served with notice amounted to a dismissal under Rule 7 of Order 33 so as to invoke the operation of the bar of Rule 15 of Order 33. The learned Judges answered that question in the negative and distinguished the previous case in Khondkar Ali afzal v. Purna Chandra : AIR1924Cal1039 on the ground that in that case dismissal had taken place after the service of notices on the Government Pleader and the opposite party. I may repeat here that this was not the basis of the decision in Khondkar Ali afzal v. Purna Chandra : AIR1924Cal1039 which apparently proceeded on the general ground that there was no distinction between rejection and dismissal. Now, Rule 15 of Order 33 runs 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...
5. Rule 7 of Order 33 which relates to the stage when notice has been served on the Government Pleader and the opposite party runs as follows:
(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 Rule 5.
(3) The Court shall then either allow or refuse to allow the applicant to sue as a pauper.
6. A consideration of these provisions clearly leads me to the conclusion that, the refusal to allow the applicant to sue as a pauper under Sub-rule (3) of Rule 7 must be the result of an inquiry into the merits of the application as directed by Sub-rules (1) and (2) of Rule 7 and it is only such a refusal which is contemplated by Rule 15 of Order 33. Dismissal for default of appearance cannot obviously amount to such a refusal. Eule 15 of Order 38 only authorises the application of the principle of res judicata to an application to sue in forma pauperis and prohibits the entertainment of a second application when the first has been dismissed on the merits. In my judgment it does not contemplate that a sammasy order passed without inquiry or contest should' be given the force of res judicata. In this connexion I would lay considerable emphasis upon the language of Sub-rule (3) of Rule 7 which runs as follows : 'The Court shall then either allow or refuse to allow the applicant to sue as a pauper.' The word 'then' clearly indicates to my mind that the refusal to allow as contemplated by Sub-rule (3) of Rule 7 must be the result of an inquiry into the merits of the application in accordance with Sub-rules (1) and (2) of the same rule. In the present case the first application was dismissed merely for default of appearance on the part of the applicant and without the slightest consideration of its merits. In fact, as pointed out above, neither the Government Pleader nor the opposite party appeared to have been present at the hearing of that application. I cannot persuade myself to hold that the law ever contemplated that such a dismissal shall be deemed to be a refusal under Sub-rule (3) of Rule 7 so as to bring into operation the bar of Rule 15. The view which I have taken is in full accord with that of Madhavan Nair J. in Chinnamal v. Papathi Ammal : AIR1925Mad986 . So far as the facts are concerned that case is on all fours with the present one and I respectfully adopt the observations made, by the learned Judge in that case as follows:
The question remains whether a dismissal for default of appearance amounts to a refusal to allow the applicant to sue as a pauper. Prima facie refusal would indicate an enquiry and a dismissal of the application on the merits; at any rate, it cannot be said that there was a refusal where the applicant did not appear on the date of the hearing of the application and invite the Court to take it into consideration or deal with it in any manner.
7. The decision in that case was approved and confirmed in the later case in Krishnamoorthy v. Ramayya : AIR1926Mad875 . I can conceive of only one case in which it may possibly be argued that there is no dismissal on the merits and yet in which I would be prepared to hold that it amounts to a dismissal under Sub-rule (3) of Rule 7 so as to bring into operation the bar of Rule 15. A case may arise in which the applicant, though he is present at the hearing of his application, refuses to press it and thus invites the Court to dismiss it. Refusal to proceed with the application or to press it amounts in my judgment to an admission on the part of the applicant that there is no merit in his case and hence a dismissal in those circumstances is really a dismissal on the merits. I am therefore unable to agree with the view taken by the learned civil Judge and in my judgment he was wrong in holding that he could not entertain the second application because it was barred by Rule 15, Order 33, Civil P.C., in consequence of the previous application having been dismissed for default of appearance. In summarily rejecting the second application on that ground he clearly refused to exercise a jurisdiction vested in him and his order must therefore be set aside. The result therefore is that I allow this petition and send the case back to the Court below with the direction that the second application for leave to sue in forma pauperis made by the petitioner in this Court shall be heard and decided in accordance with the law. The costs in this Court shall abide the result.