1. A preliminary objection was taken in this appeal as to the. right of the respondent to be heard, with reference to an order made by Mr. Justice Spencer sitting in the Admission Court excusing the delay of the appellant in applying for leave to appeal as a pauper. It has been argued before us that, seeing that the appeal was presented within the time prescribed for the filing of appeals, the respondent was not really prejudiced, and other arguments to the same effect were urged before us. We are not prepared to accept this contention. It has been held by the Privy Council in Krishnasami Panikondar v. Ramasami Chettiar 43 Ind. Cas. 493, that, as regards orders of single Judges excusing the delay in the presentation of an appeal 'it must, therefore, in common fairness be regarded as a tacit term of an order like the present that, though unqualified in expression, it should be open to re-consideration at the instance of the party prejudicially affected, and this view is sanctioned by the practice of the Courts in India.' There does not appear to be any settled practice to the contrary in the case of applications for excuse of delay in applying for leave to appeal as a pauper and we do not think any difference ought to be made. The Civil Procedure Code regards orders giving leave to sue as a pauper as affecting the other side, because it gives the other side the right to be heard when an application for leave to file a suit as a pauper is made and the effect of Order V, Rule 1 is that, when an application for leave to appeal as a pauper is made, and the suit was not prosecuted as a pauper suit originally, then the party has a right to be heard, and similarly under the proviso to Order XLIV, Rule 2, where suit was conducted as a pauper suit, the Court has a discretion to order, an enquiry, and that implies that the other side should have an opportunity to bring before the Court such facts as may induce it to direst an enquiry. We do not think it is in accordance with the scheme of the Code, or with the general policy that a matter of this sort should be finally decided without giving the other side an opportunity of being heard, We, therefore, heard Mr. Venkatarama Sastri's objections to leave having open granted in this case his contention being that there is no sufficient ground. The case is rather on the line: but, on the whole, we are not prepared to differ from the conclusion at which Mr. Justice Spenser arrived. The case has now to be disposed of on the merits.
2. What happened was, this was a suit for partition and notice was given to both parties that it would necessarily be taken up on a certain day, as there was no other business for that day. The plaintiff appeared with his Vakil and one of his witnesses. Four witnesses whom he had summoned did not appear, and when his Vakil applied for an adjournment the Subordinate. Judge asked him to pay the batta for warrants to prosure their attendance. When he said he would pay the batta the next day, the Judge said that he had been guilty of gross negligence, refused the adjournment and sailed upon the plaintiff to go on with the suit with such witnesses, as he had. The plaintiff's Vakil thereupon said that he had no instructions and the Court proceeded to dispose of the case ex parte on the pleading. We think that it ,was the plaintiff's duty to go on with the case as far as be could and we have seriously considered whether his refusal to do so should not lead us to refuse him., any relief in this case. On the other hand, we think there was no foundation for the Subordinate Judge's finding that he had been guilty of gross carelessness. On the whole, we think that the proper order is that, if the plaintiff pays the whole costs of this appeal within one month from the communication of this order to the lower Court, this appeal will be allowed. Otherwise, it will stand dismissed with costs.