1. This Rule was issued on the opposite party to show cause why an order giving leave to the plaintiff to sue as a pauper should not be set aside and why the plaintiff's suit should not be dismissed. The ground, on which this Rule has been pressed, is that the Court below ought to have held that the application of the plaintiff opposite party was barred under the provisions of Order 33, Rule 15, Civil P.C. It appears that a previous application to sue as a pauper had been made in 1930 and that application was dismissed for default, because the process fee paid for the issue of notices on the opposite party in that application as required under Order 33, Rule 6 was insufficient. It is urged, therefore that under the provisions of Order 33, Rule 15 the present application is barred. The wording of Rule 15, Order 33, is 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 to be made by him in respect of the same right to sue.
2. The wording of this rule corresponds with the wording of Order 33, Rule 7, which says:
On the day so fixed, namely, by Rule 6, or as soon thereafter, as may be convenient, the Court shall examine the witnesses (if any) produced by either party,
and hear arguments and then shall 'either allow or refuse the application to sue as a pauper.' On the other hand the wording in Order 33, Rule 5 is that the Court shall reject the application for permission to sue as a pauper in the circumstances mentioned therein. Prima facie therefore it would appear that the subsequent application was not barred unless the previous application had been refused under Order 33, R, 7. The present Rule is supported on the authority of the decision in Ali Afzul v. Purna Chandra : AIR1924Cal1039 , in which it has been held that an order, rejecting an application for default, operates as a bar under Rule 15, Order 33. That case, however is distinguishable from the present case, inasmuch as there notices were actually issued on the opposite party under Rule 6 and it was only when the case came up for disposal under Rule 7 that the application was dismissed. The language used in that decision also shows that the previous order was passed under Rule 7, Order 33. In the present case, since no notices were issued on the opposite party, as required under Rule 6, no order under Rule 7 could be passed; and the order in fact passed was one dismissing the suit for default, because the pauper applicant had failed to carry out the orders of the Court under Rule 6.
3. It is urged that there is no real distinction here, inasmuch as the order in that case was not passed under Rule 5, as the Court has held that
there does not appear any reason for the throwing out of the application under Order 33, Rule 5.
4. If the case came up to the stage of Order 33, Rule 7, then the application would ordinarily be dismissed on the merits or on such grounds as would have the same effect as if it were dismissed on the merits, the opposite party being present. In the present case the suit was dismissed for default at a previous stage and before the opposite party was called upon to reply to the grounds urged by the pauper. It should be mentioned that in deciding the case of Ali Afzal v. Purna Chandra : AIR1924Cal1039 the learned Judges relied on the authority of Ranchod Morar v. Bezanji Edulji (1894) 20 Bom 86. But we find that the Madras High Court, in deciding the case of Krishnamoorthy v. Ramayya : AIR1926Mad875 , held that where an application to sue in forma pauperis is summarily rejected under Order 33, Rule 5, (a) Civil P.C., without making any inquiry under Rule 6 and a consequent order under Rule 7, a second application for the same purpose is not barred under Rule 15 of the same order. That was also the opinion of the learned Judges, who decided the case of Kedar Nath Ray v. Tula Bibi (1906) 10 CWN 104n a decision, which was not referred to by the learned Judges, who decided the case of Ali Afzal Purna Chandra : AIR1924Cal1039 . In the case of Ma Sein v. Ma Kya Hmyin AIR 1926 Rang 200 the learned Judges also held that, where the first application for leave to sue in forma pauperis was dismissed, as the application was not framed and presented in accordance with the rules and the second application was dismissed for default, neither party appearing, the third application was not barred under Order 33, Rule 15, as in the two applications the stage of 'refusal' as contemplated under Order 33, Rule 15 was not arrived at. In the present case it is only necessary for us to say that we think that the order, not having been passed under Rule 7, Order 33, Rule 15 had no application and there/ore the present application is not barred under that rule.
5. The portion of the order of the Court below as to costs must however be modified. The costs will be costs in the suit under Order 33, Rule 6. With this modification this Rule is discharged. We make no order as to costs in this Rule.
6. I agree with my learned brother that this Rule should be discharged. I rest my decision on the ground that the order in the case rejecting the previous application to sue in forma pauperis has not reached the stage of Order 33, Rule 7, Civil P.C., and therefore such an order cannot be regarded as an order refusing to allow the applicant to sue as a pauper within the meaning of Order 33, Rule 15 of the Code, so as to entitle the petitioner in the present Rule to contend that the previous order operates as a bar to any subsequent application of the like nature. In support of this Rule Mr. Manmathanath Ray has relied on a decision of this Court, which my learned brother has already referred to, viz. the ease Ali Afzal v. Purna Chandra : AIR1924Cal1039 . At the first blush that case seems to support his contention. On a close examination of the case, however, it will appear that the learned Judges rested their decision on the ground that there the order was made under Order 33, Rule 7, Civil P.C. The order was made after notices had been served on the learned Government Pleader and on the opposite party under Order 33, Rule 6. The opposite party was present on the date fixed for inquiry into pauperism and it appears from the record of the case, which we sent for, that the applicant, who prayed to be allowed to sue as a pauper, was absent and his application was dismissed. No costs were allowed to the opposite party. There can be no doubt, therefore that the learned Judges, while referring to the provisions of Order 33, Rule 7 of the Code, were of opinion that the previous application operated as a bar, because the previous order was one refusing to allow the applicant to sue as a pauper although his application was dismissed as no evidence was adduced on behalf of the alleged pauper on the date fixed for hearing. It is true that in some portions of the judgment language has been used, which would seem to suggest that a second application would be barred if the previous application was either rejected or refused. In support of that contention the learned Judges were relying on the decision in the case of Ranchod Morar v. Bezanji Edulji (1894) 20 Bom 86. An examination of this case will show that there also the order, which was said to be a bar to a subsequent application to be allowed to sue as a pauper, was one, which was made under Order 33, Rule 7, of the Code, which corresponds to Section 409, Civil P.C. of 1882.
7. That is so appears also from a remark made by the learned Judge of the Madras High Court in the case of Krishnamoorthy v. Ramayya : AIR1926Mad875 , where Phillips, J., pointed out that in the case of Ranchod Morar v. Bezanji Edulji (1894) 20 Bom 86 there had been an inquiry under Rule 6, although the Court purported to pass an order under Rule 5. From the facts of the present case, which have, already been stated by my learned brother, it will appear clear that, although the Court in the first instance made an order fixing 12th of July as the date of the hearing of the pauper application under Rule 7, it afterwards modified that order and, as a matter of fact, the stage of Rule 7 could not be reached, because no process fees ware paid by the applicant to be declared a pauper, who is the opposite party before us. Another case, to which reference has been made, is that of Atul Chandra Sen v. Peary Mohan Mookerjee (1916) 33 IC 812, where the learned Judges held that there is no distinction between orders of rejection passed under Rule 5 and orders of refusal under Rule 7. No authorities were cited by the learned Judges in support of this contention and we do not find that the subsequent authorities on this question would justify this broad proposition laid down by them in that case. For these reasons I agree that the Rule should be discharged.