( 1 ) THIS is an appeal by defendant-1 against the order dated 2-2-1985 passed by the Add. Civil Judge, Bangalore District. Bangalore, in O. S. 106/80, dismissing I. A. X. filed by defendant-1 under O. 33, R. 1. on the second occasion.

( 2 ) THE plaintiffs filed the suit O. S. 106/80 to recover about 30 lakhs and odd from the defendants. The defendant-1 filed I. A. VII making a counter claim of about a crore and 26 lakhs and he sought permission to make the counter claim as an indigent person. The said I. A. VII came to be dismissed for default on 1-10-1983. I. A. X was filed under O. 9, R. 9 to set aside the ex parte order of dismissing I. A. VII for default. He also filed second application I. A. X. under O. 33 R. 1 again to permit him to make a counter claim as an indigent person. The trial Court dismissed I. A. IX and it also dismissed I. A. X. on the ground that an order passed dismissing I. A. IX filed under O. 9, R. 9 would bar the subsequent petition. M. F. A. 1528/85 was filed against the dismissal of I. A. IX filed under O. 9, R. 9. But later on it was withdrawn. The present appeal is directed against the order dismissing I. A. X.

( 3 ) LEARNED Counsel S