Krishnaswami Ayyangar, J.
1. This is an appeal against the order of the Subordinate Judge of Dindigul setting aside the decree passed by the District Munsif of Periyakulam dismissing the suit of the appellant on the ground that she had failed and neglected to perform a condition precedent on the performance of which she was granted an adjournment of the suit.
2. The facts are these. The first respondent filed the suit out of which the present appeal has arisen for a declaration that the decree and subsequent proceedings in O.S. No. 156 of 1930 on the file of the District Munsif's Court, Periyakulam, are void and not binding on her and for recovery of possession of certain immovable properties together with mesne profits. She obtained leave to file the suit in forma pauperis. The defendants contested the suit and issues were framed on the 20th August, 1937 embodying the questions in dispute. The trial was fixed for the 12th October, 1937. On that day the plaintiff was not ready and the suit was adjourned to the 24th November, 1937. The plaintiff was again unready and the suit had again to be adjourned to the 21 st January, 1938. On the 21st January, 1938 the plaintiff was once again not ready and the Court was obliged to adjourn the suit to the 8th February, 1938. On that day it appeared that the plaintiff was again not ready and she prayed for a further adjournment of the suit. The adjournment was granted but the plaintiff was directed as a condition precedent to pay two sets of day costs of Rs. 5 each, the idea being that the day costs should be paid to the contesting defendants on or before the adjourned date. Subject to the said condition the suit was adjourned to the 17th February, 1938. Neither on that day nor on any day previous did the plaintiff pay the costs ordered and the District Munsif therefore dismissed the suit. An appeal was preferred to the Subordinate Judge of Dindigul who reversed the decree of the District Munsif on the ground that as the appellant was a pauper she should not have been asked to pay the day costs and that her suit ought not to have been dismissed for non-payment of the same. For this view the learned Judge relied upon the decision of the Bombay High Court reported in Ambaji v. Hanmantrao I.L.R.(1922)Bom. 104.
3. The only relevant provision of the Code of Civil Procedure on the point is that contained in Order 33, Rule 8 which says:
Where the application (application for leave to sue as a pauper) is granted, it shall be numbered and registered, and shall be deemed the plaint in the suit, and the suit shall proceed in all other respects as a suit instituted in the ordinary manner, except that the plaintiff shall not be liable to pay any court fee (other than fee payable for service of process) in respect of any petition, appointment of a pleader or other proceeding connected with the suit.
4. The meaning of the rule is clear that when permission is given to a party to sue as a pauper he gets immunity from payment of the court fee on the plaint and also on any petition, appointment of a pleader, or other proceeding connected with the suit. The pauper plaintiff is not excused from payment of the fees payable for service of process nor is there anything in the language of the rule to warrant the idea that the pauper plaintiff is exempted from liability for the day costs, if and when the court directs that the same should be paid. The decision of the Bombay High Court in the case cited appears to lay down the proposition that once a person is found to be a pauper and allowed to sue as such the Court has no right to direct the pauper to pay the costs in cash. The Court considered that such an order was 'wholly improper'. With very great respect I am unable to follow this decision. The learned Judges have not taken into consideration the effect of the language employed in Order 33, Rule 8 Civil Procedure Code in coming to their conclusion. If the language of the rule is considered it will be seen that an order permitting a party to sue as a pauper does not operate to confer a general immunity from liability to pay costs or other fees except those specifically mentioned. The same question arose in Lim Pin Sin v. Eng Van Hock I.L.R.(1928)Rang. 561, where it appeared that an adjournment was granted to the plaintiff on condition that he paid the costs. In default the suit was to stand dismissed. The plaintiff not having paid the costs as directed by the order of the Court the suit was dismissed. It was argued on the authority of Ambaji v. Hanmantrao I.L.R.(1922)Bom. 104, that the direction that a pauper plaintiff should pay the costs as a condition of the adjournment was wrong and should be ignored. The learned judges expressed the opinion that the facts in the Bombay case were not parallel to those . before them and that they were unable to hold that an order making the payment of costs a condition of the adjournment was unjustified. I am of the opinion that the order of, the ' Court which directed the first respondent to pay the costs specified in the order as a condition precedent for the further hearing of the suit is not illegal.
5. But it was urged that even assuming that the Court had the power to make the order in question it was not right for the Court to dismiss the suit but that the Court should have merely gone on to try it. Order 17, Rule 1 Civil Procedure Code says:
(1) The Court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit.
(2) In every such case the Court shall fix a day for the further hearing of the suit, and may make such order as it thinks fit with respect to the costs occasioned by the adjournment.
6. It is clear from Rule (2) that the Court is given ample discretion as regards the conditions subject to which it may adjourn the hearing of the suit in so far as the costs occasioned by the adjournment are concerned. I. am not prepared to say that when the Court finds a plaintiff constantly defaulting in being ready for the trial it will not be justified in directing the payment of the day costs as a condition precedent to the further hearing of the suit. When such a condition is inserted in the order it is valid and could be enforced by the dismissal of the suit. The question whether in such circumstances the Court can dismiss a suit arose for consideration in Veerabhadrappa Chetti v. Chinnamma (1897) 8 M.L.J. 189 : I.L.R. 21 Mad. 403. In that case it appeared that an application for the grant of a succession certificate to a widow was opposed by a brother of the deceased. On the day of the hearing the applicant was ready to proceed but the brother applied for an adjournment and it was granted, the Court directing him to pay the costs of the adjournment. On the adjourned date the order for payment of costs not having been complied with the Court; proceeded under Section 158 Civil Procedure Code (corresponding to Order 17, Rule 3 of the present Code) and issued a certificate in favour of the applicant. An appeal was preferred to the High Court and the question was as to whether the order of the lower Court not made on the merits could be sustained on the sole ground that there was a default in the payment of costs by the appellant. The learned Judges observed:
Such costs would ordinarily be recoverable in execution, and, in the absence of a specific order making their payment a condition precedent to hearing the counter-petitioner's evidence, the counter-petitioner's failure to pay would not reader Section 158 applicable.
7. It is clear from this case that there is nothing illegal in the payment of costs being made a condition precedent and in a case where that is done there is nothing wrong in the Court giving effect to it by the dismissal of the suit itself. To the same effect is another decision of this Court in Dadamudy Tatayya v. Kelachina Venkatasubbaraya Sastry I.L.R. (1928) Mad. 786. In that case the defendant who had not been ready on more than one occasion applied for an adjournment to enable him to cross-examine the plaintiff's witnesses. The application was granted subject to the costs of the other side being paid before the date of the next hearing. The costs were not paid and the Court refused to allow the defendant to cross-examine the plaintiff's witnesses. An appeal against the order of the trial Court was preferred to this Court. Devadoss, J., observed as follows:
When the Court grants an adjournment and directs the party applying for the adjournment to pay the costs of the other side before the date of the next hearing, it is well understood that unless the party ordered to pay the costs does pay before the date of the next hearing he would have no right to be heard.
8. These authorities warrant me in coming to the conclusion that it is competent to a Court when it finds that a condition precedent to the hearing of the suit had not been fulfilled, to dismiss the suit and this is precisely what has happened in the present case. The view of the learned Subordinate Judge based upon the decision in Ambaji v. Hanmantrao I.L.R.(1922) Bom. 104, cannot therefore be sustained.
9. The result is that this appeal is allowed and the decree of the District Munsif restored. The respondents will pay the appellant's costs in the appeal here.
10. Leave refused.