: Provisions of Order XXXIII, Rule 15 and 15-A apply to an order refusing the application, regardless of the reason for such refusal.

JUDGMENT - Mrs. SUJATA MANOHAR, J.:---The petitioner filed a Civil Suit in the Court of the Civil Judge, Senior Division, Sangli on 2nd November, 1981 for recovery from the respondent of a sum of Rs. 17.516 49 P. together with interest. The petitioner made an application being Miscellaneous Application No. 179 of 1981 for being permitted to file the suit in forma pauperis. It seems that this application took a very long time for disposal. The application was fixed for hearing on 5-9-1985. On that day the petitioner was absent. It is his case that he had applied for an adjournment on the ground that he was required to be elsewhere for his business, but he learnt on that day that one of his relatives was seriously ill and was admitted to the hospital. Hence he was required to attend on him at the hospital.

2. In his absence the learned Civil Judge, Junior Division, Sangli dismissed his application for default.

3. The petitioner applied for setting aside the order of dismissal for default, under Order IX, Rule 13 of the Code of Civil Procedure. This application, however, was dismissed. Thereafter the petitioner preferred an appeal from this order of dismissal for default being Misc. Civil Appeal No. 180 of 1987 before the Additional District Judge at Sangli. The District Judge by his order dated 28-11-1988 has dismissed the appeal with costs and his confirmed the order of dismissal passed by the trial Judge. In the present writ petition the petitioner has challenged these orders.

4. Under Order XXXIII, Rule 7(3) of the Code of Civil Procedure the Court may either allow or refuse to allow the applicant to sue as a pauper. Under order XXXIII, Rule 15 an order refusing to allow the applicant to sue as a pauper shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue; but the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such right as set out in that rule. In the present case the petitioner submits that he was in a position to pay court fees at the date of dismissal of his appeal and he should have been given time to pay the requisite Court fees for the purpose of registering his suit. In this connection he relies upon Order XXXIII, Rule 15-A, which provides as under :

15A. Nothing contained in rule 5, rule 7 or rule 15 shall prevent a Court, while rejecting an application under rule 5 or refusing an application under rule 7, from granting time to the applicant to pay the requisite court-fee within such time as may be fixed by the Court or extended by it from time to time; and upon such payment and on payment of the costs referred to in sub-rule (2) of Rule 15 within that time, the suit shall be deemed to have been instituted on the date on which the application for permission to sue as an indigent person was presented.

The Appellant Judge, however, has not applied his mind to the provisions of Rule 15-A. He has observed that the plaintiff can file a separate suit on the same cause of action. He has not taken into account the fact that the original application for being allowed to sue in forma pauperis was filed as far back as in November, 1981 and the suit was also filed in 1981. The suit is for the recovery of money claim. On the date of the appellant order his claim was clearly time barred, in case the petitioner had to file a fresh suit. Looking to the long delay in the disposal of his application to sue in forma pauperis, the District Judge ought to have taken into account the provisions of Rule 15-A and should have granted time to the petitioner to pay the requisite court fee.

5. It is contended by Mr. Angal, learned advocate for the respondent that the provisions of O. 33, Rules 15 and 15-A apply only if the application to sue in forma pauperis is dismissed on merit. He contends that when the application is dismissed for default, these rules do not come into operation. There is, however, no reason to interpret Rule 15 and 15-A as applying o

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