1. The defendant petitioners have come up in revision against the order of the trial Court whereby an application of the plaintiffs for restoration of their pauper application has been allowed.
2. The plaintiffs filed a suit in forma pauperis for the recovery of Rs. 50,000/- as damages and compensation for the injuries caused by the defendants on their person. The suit was instituted on 22nd March, 1975. Along with this suit an application under Order 33 C.P.C. was also filed and it is unfortunate that the matter of pauperism is still pending for final adjudication. On 22nd September 1977, the application under Order 33 C.P.C. was dismissed in default, as none was present. The next day i. e. on 23rd September, 1977, an application for its restoration was filed on behalf of the plaintiffs which was contested by the defendants. On the pleadings of the parties, the trial Court framed the following issues:--
1) Whether there is sufficient cause for restoration of the pauper application dismissed for default of appearance? O. P. P.
3. After going through the evidence, the trial Court came to the conclusion that the absence of the plaintiffs and their counsel from the Court on 22nd September, 1977, was not intentional and, therefore, there is sufficient cause for restoration of the pauper application. Consequently, the application was allowed. Feeling aggrieved against this order, the defendants have come up in revision to this Court.
4. The learned counsel for the petitioners vehemently contended that once an application is dismissed in default after notice to the defendants, the same will be deemed to have been decided under Order 33 Rule 15 C.P.C. and, therefore, no application for restoration is maintainable under the Code of Civil Procedure. In support of his contention, he has relied upon Radhika Prasad Lal v. Shyama Charan Lal AIR 1968 Pat 387; and Jeodheshwar Prasad Singh v. Sheedashi Devi AIR 1978 Pat 215. The learned counsel further contended that it has been wrongly observed by the trial Court that the case was fixed to await the report of the Collector and no further proceedings were to take place on that date and under these circumstances the order of the trial Court is liable to be set aside.
5. On the other hand, the learned counsel for the plaintiff-respondents has relied upon Balasubramaniam v. Purushothaman, AIR 1978 Mad 228, in which a view contrary to that of the Patna High Court has been taken.
6. After hearing the counsel for the parties at a eat length, I do not find any merit in this petition. Shri Ram Murti Chadha, Advocate for the plaintiffs in the trial Court has stated on oath that he attended the Court of Sub Judge 1st Class, Jullundur, on 22nd,Ieptember, 1977, and that his absence from the Court was not intentional. This statement has been accepted by the trial Court Under these circumstances, the learned counsel for the petitioners cannot be allowed to urge that there was no sufficient ground to restore the application of the Plaintiffs dismissed in default.
7. As regards the question that if an application under Order 33, C.P.C. is dismissed. in default after notice to the defendants, whether such an order falls under Order 33 Rule 15 C.P.C. or not and if it so falls, is an application for its restoration maintainable under the Code of Civil Procedure, the counsel have relied upon the decisions which are at variance. Of course, the Patna High Court has taken thc view that such an order of dismissal amounted in law to refusal of permission to prosecute the suit in forma pauperis within the me2ming of Rule 7(3) of Order 33 C.P.C. and consequently, the fresh application was barred under Order 33 Rule 15, C.P.C. Though the judgments of the Patna High Court are distinguishable on the facts of the present case, but even on the proposition of law, I am unable to agree with this view and prefer the view taken by the Madras High Court in Balasubramaniam's case (AIR 1978 D4ad 228) (supra) Order 33 Rule 15, C.P.C. applies only to a case where a prior application for permission to sue in forma pauperis is rejected on merits and not to a case where the application is dismissed for default, as in the present case. Order 33 Rule 15, C. P C. provides that an order refusing to allow application to sue (as an indigent person) shall be a bar to any subsequent application of the like nature in respect of the same right to sue. Thus, from the language used therein, the intention seems to be that if an order has been passed on merits disallowing the application to Sue as an indigent person, then a subsequent application shall be a bar and not otherwise. In the circumstances of the present case, the trial Court has rightly allowed the application of the plaintiff-respondents for restoration of their application under Order 33, C.P.C.
8. Consequently, this revision petition fails and is dismissed with costs. Parties have been directed to appear in the trial Court on 20th May, 1980. Since the Proceedings are pending from 1975 it is directed that the same be proceeded with expeditiously.
9. Revision dismissed.