Madhavan Nair, J.
1. This is an application under Section 115 of the C.P.C. to revise an order made by the Subordinate Judge at Ootacamund granting permission to the respondent to sue in forma pauperis.
2. The respondent, Papathi Ammal, claimed certain properties with mesne profits on the ground that they belonged to her mother, Maruthayi (who died in 1904) as her stridhanam and that the decree in O.S. No. 91 of 1907, on the file of the Sub-Court at Ootacamund, which the present petitioner obtained against Maruthayi's son in respect of the said properties and the purchase thereunder are not valid and binding on her. With a view to enforce her claim she filed O.P. No. 19 of 1919 on the file of the Sub-Court for permission to sue as a pauper. The present petitioner Chinnammal opposed this application (Exhibit II). On the 30th of March, 1920 when the petition came on for hearing Papathi Ammal, the respondent, was absent and her Counsel stated that he had no instructions. The application was accordingly dismissed on the ground of her absence (Exhibit III). It is not clear from the records before me if Chinnammal or her Counsel was present on the occasion.
3. After the lapse of more than three years, from tbe dismissal of the previous application. Papathi Ammal filed O.P. No. 28 of 1923, out of which the present civil revision petition has arisen, for permission to sue as a pauper in respect of the same cause of action. Chinnammal filed an objection statement denying the alleged pauperism and contending that the dismissal of O.P. No. 19 of 1914 precluded her from maintaining this second petition. At the hearing, however, the only ground on which the petition was resisted was that the dismissal of the previous petition operated as a bar to the present petition under Order 33, Rule 15, C.P.C. The Subordinate Judge overruled this contention and granted leave as prayed for.
4. In this Court the order of the learned Subordinate Judge is attacked by the petitioner, Chinnammal, on three main grounds, namely, (1) that the present petition is barred under Order 33, Rule 15, C.P.C. (2) that it is barred under Order 9, C.P.C., and (3) that it should have been rejected, as the cause of action was obviously barred on the face of the petition itself.
5. Several decisions have been cited to me in support of the contention that the dismissal of an application in forma pauperis for default of appearance amounts to an ' order refusing to allow the applicant to sue as a pauper' within the meaning of Order 33, Rule 15, C.P.C., but they have no direct bearing on the question at issue as none of them dealt with a case of dismissal for default of appearance. In one set of cases the facts show that the first application was dismissed as the applicant did not wish to proceed with the application [vide the decisions in Ranchod Morar v. Bezanji Edulji (1896) 20 Bom. 86 Baroda Dasi v. Upendranath Mandal (1919) 52 I.C. 562 and Begum v. Jafar Hassan A.I.R. 1924 Lah. 312 the question was whether the rejection of a petition under Order 33, Rule 5(a) operated as a bar under Order 33, Rule 16, C.P.C. - See the decision in Atul Chandra Sen v. Raja Peary Mohan Mookerjee 20 C.W.N. 669 and Howa v.. Sit Shein (1917) 9 L.B.R. 93. In both the sets of cases the petitioner was present at the hearing; and there was, in consequence, no question about dismissal for default of appearance and the legal effect thereof.
6. 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. The observation of Chitty. J. in Baroda Dasi v. Upendranath Mandal (1919) 52 I.C. 562 to the effect that 'This is not a case of an application being dismissed for want of appearance' suggests that there is a difference between dismissal based upon refusal to proceed and that based upon default of appearance, and that in his view the latter would not amount to a refusal to grant leave under Order 33, Rule 15, O.P.C. The decision in Maung Aung Tun v. Ma E Kin A.I.R. 1924 Rang. 161 appears to be to some extent in point. In that case it is true that the dismissal was for the absence of both parties a point which is not clear, as already stated, in the present case but so far as the question whether a dismissal for default of appearance would amount; to an order refusing permission is concerned, the presence or absence of the respondent can have obviously no material bearing. Reference may also be made to the decision in Rajah Bhoj Singh v. Ranee Maha Koonwer 3 Agra Mis. 1 which held tbab the striking off of a pauper application for the absence of the applicant did not amount to a refusal under Section 310 of Act XIV of 1859.
7. In the result, I am of opinion that the dismissal of a prior application for default' of appearance does not operate as a bar under Order 33, Rule 15, C.P.C. and that therefore, there is, no force in the first ground taken before me by the petitioner.
8. The second contention on behalf of the petitioner is that Order 9, C.P.C. governs proceedings under Order 33, C.P.C., and that, consequently, the present application has been misconceived. The argument is that the respondent should have taken proceedings for setting aside the dismissal for default of the first application and not filed a second application in respect of the same master. Assuming that the provisions of Order 9, C.P.C. are applicable to these proceedings it does not necessarily follow that the dismissal of one application for default of appearance bars a similar application see the decision in Maung Aung Tun v. Ma E Kin A.I.R. 1924 Rang. 161 Order 9, C.P.C., 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, C.P.C., it is essential to ascertain under what rule was the dismissal of the first application made. In the present case, as I have already stated, it is not clear from the records whether the present petitioner, Chinnamraal, was or was not present when O.P. No. 19 of 1919 was dismissed for default on the 30th of March, 1920. It is incumbent on the party who relies on the bar of Order 9 to show that the dismissal of the previous application was under Rule 8. This the petitioner has failed to do. She did not resist the present application in the lower court on any such ground and did not care to specifically allege or prove that she was present at the dismissal of O.P. No. 19 of 1919. In her objection statement after the dismissal of O.P. No. 19 of 1919 she vaguely stated that the petitioner was not entitled to present the petition, but at the hearing before the Subordinate Judge she took her stand exclusively on the bar under Order 33, Rule 15, C.P.C. and did not make the faintest reference to Order 9, or to the disability arising thereunder. In the absence of proof that she was present at the dismissal of O.P. No. 19 of 1919, she cannot invoke the aid of Rules 8 and 9 of Order 9, C.P.C. The argument has been in fact advanced for the first time in this Court and the material fact to support it has not been established. I do not see any valid reason Co give a further opportunity to allege or prove fresh facts or to entertain arguments which require the elucidation of fresh facts. Hence the argument based upon Order 9, C.P.C. must fall to the ground.
9. In the above view it is unnecessary to examine whether Order 9, C.P.C., applies to proceedings connected with pauper applications. In Kanagammal v. Panchapahesa Odayar : AIR1914Mad256 , Sadasiva Iyer, J. has expressed the opinion that Section 141, C.P.C. governs proceedings connected with pauper applications and it follows therefrom that Order 9, would also apply to such proceedings; but the decision in that case was mainly rested on the ground that the Court had inherent powers to direct the amendment of applications. However, in the view that the petitioner cannot be permitted to argue the question for the first time in this Court it is not necessary to enlarge on this aspect of the case.
10. The third ground also must fail for the reason that it was not taken in the lower Court. Papathi Ammal says that she attained majority in October, 1917, and that the cause of action for possession arose since 1917 when she attained majority and for mesne profits in and since 1920. This has not been denied by the petitioner and there is no allegation in the objection petition, that there was no subsisting cause of action. The respondent does not say in her petition that her suit is to set aside a transfer of property made by her guardian; and, if she attained majority in 1917 prima facie her suit is not barred by limitation. An investigation of further facts may be necessary for a satisfactory disposal of this petition on the question of limitation. I am not inclined to allow this new question of limitation to be raised for the first time in the hearing of this Civil Revision Petition.
11. This Civil Revision Petition, therefore, is dismissed with costs.