The dismissal of an application under Order 33, Rule 1 of the Civil Procedure Code for default is equivalent to an order of refusal to allow within the meaning of Rule 7(3), and therefore attracts the bar of Rule 15.

( 1 ) THIS is a Rule obtained by the applicant in, a proceeding for permission to sue in forma pauperis. The facts which are undisputed are these :

( 2 ) ON the 24th September, 1954, the petitioner filed an application under Order 33, Rule 1 of the Civil Procedure Code which gave rise to Judicial Miscellaneous Case No. 83 of 1954 of the First Court of the Subordinate Judge, Midnapore. Notices of the aforesaid application were Served upon the Government as well as upon the opposite parties. The opposite parties entered appearance on the 26th March, 1955 and the Government Pleader entered appearance on the 16th, of July 1955. On the 9th July, 1955, the applicant filed a list of witnesses and upon that the Court issued summonses on the applicant's witnesses and recorded an order to the effect that non-service of summons would not be a ground of further adjournment and for non-production of documents. The opposite party No. 1 also filed a petition for issuing summonses upon its witnesses and that prayer was allowed on the 10th September, 1955 and the Court again recorded an order that non-service of summons would not be a ground for further adjournment- The proceeding was fixed for peremptory hearing on the 17th September, 1955 on which date both the opposite party and the State filed hajiras. The petitioner, however, filed an application for shifting the date of peremptory hearing. Upon that prayer, the Court recorded the following order:"petitioner to pay adjournment cost of Rs. 8/- each to the two sets of contesting O. Ps. C. P. (condition precedent) to hearing. The case be adjourned for peremptory hearing to 19-11-1955. " On the 12th October, 1955, the applicant filed a fresh list of witnesses and upon that list the Court directed summonses to be issued and to be served by the party at his own risk. On the 19th November, 1955, the petitioner again filed an application for adjournment and upon this application, the Court passed the following order: "this is the second prayer of its kind. Petitioner has not taken the steps for which adjournment was taken on the previous occasion. I shall be prepared to consider the prayer provided the said steps are taken and also the cost awarded is paid. Learned pleader for petitioner states he is not in a position to comply with the above order. Ordered: the application be dismissed for default with costs. "after the dismissal of the application filed by the petitioner on the 24th September, 1954, the petitioner filed another application on the 12th November, 1955. This application gave rise to Miscellaneous Case No. 96 of 1955 of the Court of the 1st Subordinate Judge, Midnapore. The learned Subordinate Judge has dismissed this application on the ground that in view of the dismissal of the previous application on the 19th November, 1955, a fresh application was barred under the provisions of Order 33, Rule 15 of the Code of Civil Procedure.

( 3 ) AGAINST this order the petitioner has obtained this Rule.

( 4 ) MR. Panda appearing in support of the Rule has argued that an order "refusing to allow" within the meaning of Order 33, Rule 15 must be a refusal to allow within the meaning of Order 33. Rule 7 (3) and a refusal to allow within the meaning of Order 33, Rule 7 (3) must be a refusal to allow on the merits after recording all the evidence that may be adduced by the parties. Now an application presented under Order 33, Rule 3 may be summarily "rejected'' on any of the grounds mentioned in Rule 5 and if the Court does not summarily reject it under Rule 5 it may fix a day for receiving evidence in proof of pauperism after giving notice to the opposite party and the Government Pleader under Rule 6. Then Rule 7 provides that after making a memorandum of the substance of the evidence that may be adduced by the parties and hearing any argument that may be advanced on the question, whether the applicant is subject to any of the prohibitions in Rule 5 the Court shall either "allow or