The rejection of an indigent person's application under Order 33, Rule 1, Civil Procedure Code for default tantamounts to the dismissal of the plaint in a suit, making the provisions of Order 9, Rule 9, Civil Procedure Code applicable for restoration.

( 1 ) HEARD the arguments of learned Counsel for petitioner. The learned Counsel for respondent could not be heard as he could not keep himself present to canvass his arguments.

( 2 ) THIS revision is directed against the concurrent orders of the Courts-below rejecting the application of the petitioner filed under Order 9, Rule 9, Civil Procedure Code for restoration of her petition filed under Order 33, Rule 1, Civil Procedure Code in Miscellaneous Case No. 7 of 1989.

( 3 ) THE petitioner had presented the petition under Order 33, Rule 1, Civil Procedure Code in the said Miscellaneous Case No. 7 of 1989 against respondent in the Trial Court seeking permission to sue as an indigent person for the reliefs prayed therein. That petition came to be dismissed for default on 4-7-1991. Subsequently, she made an application under Order 9, rule 9, Civil Procedure Code in Miscellaneous Case No. 7 of 1991 before the Trial Court to restore her said petition. The respondent opposed that application. A formal enquiry was held by the learned Munsiff. The petitioner adduced evidence in support of her said application. On the basis of evidence the learned Munsiff recorded positive finding holding that petitioner had shown sufficient cause for her non-appearance on 4-7-1991 in the said Miscellaneous Case No. 7 of 1989 as she was ill and was not in a position to attend the Court, but he dismissed her application in Miscellaneous Case No. 7 of 1991 holding that the said application filed under Order 9, Rule 9, Civil Procedure code is not tenable since she had the right to make fresh application under Order 33, Rule 1, Civil Procedure Code. In her appeal before the learned Civil Judge, he also concurred with the conclusion of the learned Munsiff and rejected the appeal by judgment dated 29-3-1993. Hence this revision by the petitioner.

( 4 ) ON consideration of the relevant provisions under Order 33, Rule 1, Civil Procedure Code and Order 9, I find that both the courts-below have misconceived these provisions and have misdirected themselves with the result they have reached wrong conclusions.

( 5 ) INDISPUTABLY, in the case on hand, the petitioner' sapplication under Order 33, Rule 1, Civil Procedure Code in miscellaneous Case No. 7 of 1989 had been dismissed by the trial Court for her default in appearance at the stage of enquiry into her indigent condition which was being conducted in accordance with Rule 7 of Order 33, Civil Procedure Code. It is well-settled that the institution of a suit by an indigent person commences from the date when he makes his application under order 33, Rule 1, Civil Procedure Code and the enquiry to be conducted by the Trial Court on that application in regard to the indigent condition of the applicant forms part of the suit proceedings, and that the application itself partakes the character of a plaint Ramappa Parappa Khot and Others v gourawwa. In that view of the legal position it becomes clear that the rejection by the Trial Court of petitioner's application under Order 33, Rule 1, Civil Procedure Code for default tantamounts for all legal purposes to dismissal of plaint in a suit. As a necessary legal corrolary, therefore, it follows that the provisions of Order 9, Rule 9, Civil Procedure Code are clearly attracted to the instant case and, hence, the impugned orders of both the Courts-below are liable to be set aside as they are not sustainable in law.

( 6 ) FOR the aforesaid reasons, the petition is allowed. The impugned judgment of the lower appellate Court and the impugned order of the Trial Court are set aside and the petitioner's application made under Order 9, Rule 9, Civil procedure Code in Miscellaneous Case No. 7 of 1991 is allowed with the result her petition in Miscellaneous Case No. 7 of 1989 filed under Order 33, Rule 1, Civil Procedure Code stands restored to the file of the Trial Court. The Trial Court shall proceed further to deal with the said petition in Miscellaneous Case No.