The provisions of Order 9 of the CPC are applicable to a proceeding instituted on the filing of a pauper application under Order 33, Rule 1 of the CPC, and the dismissal of a pauper application for default in absence of both parties is equivalent to a dismissal under Rule 3 of Order 9 of the CPC. Therefore, a second application for permission to sue in forma pauperis is maintainable if the first application was dismissed for default under Rule 3 of Order 9 of the CPC.

N.L.Untwalia, J.

1. The petitioners had filed panper Miscellaneous Case No. 41 of 1960 against the opposite parties for permission to sue them in forma pauperis. After the formalities and the requirements of Rules 4 and 5 of order 33 of the Code of Civil Procedure (hereinafter called the "Code") had been gone into and complied with, notices were directed to be issued to the opposite parties. They were issued and served. The opposite parties appeared to contest the application of the petitioners. Eventually, the miscellaneous case was fixed for hearing on 11-2-1961. On that date, however, the petitioners took no steps. The opposite parties filed a petition for time which was rejected as frivolous. The ease was called out for hearing, but none responded to repeated calls. The miscellaneous case was, therefore, dismissed for default. From the order dated 11-2-1961, it is manifest that the dismissal of Miscellaneous Case No. 41 of 1960 was at a point of time when both the parties had absented themselves and none had responded to repeated calls. It is also undisputed that the case was dismissed when the stage of adducing evidence and advancing arguments under Rule 7 of Order 33 of the Code had been reached.

2. The petitioners filed in the Court below an application for restoration of Miscellaneous Case No. 41 of 1960. They failed. Thereafter, they filed a second application under Order 38, Rule 1 of the Code, which was registered as Miscellaneous Case No. 15 of 1963. They asked for permission again to sue the opposite parties in forma pauperis. This application was also resisted by them. On merits, the learned Subordinate Judge has held that the petitioners are paupers and are entitled to get permission to sue in forma pauperis. But in view of the provisions of law contained in Rule 15 of Order 33 of the Code, he has held that the second application is not maintainable relying upon a Bench decision of the Calcutta High Court in Harendra Kumar Basu V/s. Contai Bus Syndicate Ltd., AIR T958 Cal 182.

3. The point is not free from difficulty. There are divergent decisions of the various High Courts in this regard. iN most of the cases, no argument seems to have been advanced as to whether a Miscellaneous case filed under Order 33, Rule 1 will attract the procedure contained in Order 9 by virtue of the law engrafted in Sec.141 of the Code. At any rate, this point does not seem to have bee" decided either way in any of the cases.

4. In Ranchod Morar V/s. Bezanji Edulji, (1898) ILR 22 Bom 86, the applicant, who wanted permission to sue in forma pauperis, did not press his application when the stage of its hearing was reached within the meaning of Rule 7 of Order 33 of the present Code. The case was dismissed for default. There it was held by the Bombay High Court that a second application was not maintainable. Following this decision in an earlier Bench decision of the Calcutta High Court in Atul Chandra v. Peary Mohan, AIR 1917 Cal 696, some observation were made indicating that even if, to use a short expression for the sake of brevity, the pauper application is dismissed for default at the stage when the case is for consideration of Rule 5 of Order 33 of the Code. Rule 15 is a bar. But later Calcutta cases have explained that case and the cursus curiae of the Calcutta High Court is that if the pauper application is dismissed for default at a stage when the case is fixed for hearing under Rule 7 of Order 33, it is tantamount to refusal of the application within the meaning of Rule 15, and that being so, a second application is barred. No distinction has been made in the Calcutta cases between the dismissal in absence of both the parties or that when the applicant was absent and the opposite party was present and ready to adduce evidence. Those Calcutta cases are Baroda Dasi V/s. Upendranath Mandal, AIR 1919 Cal 330 (2), Khondkar Ali Afzal V/s. Purna Chandra Tewari. AIR 1924 Cal 1039, and the one which I have already referred to,