The dismissal of an application in forma pauperis for default of appearance does not operate as a bar under Order 33, Rule 15, C.P.C. The specific rule under which the dismissal of the previous application was made under Order 9, C.P.C. must be established. New issues cannot be raised for the first time in the hearing.

Madhavan Nair, J.

1. This is an application under Section 115 of the C.P.C. to revise an order made by the Subordinate Judge at Ootacamund granting permission to the respondent to sue in forma pauperis.

2. The respondent, Papathi Ammal, claimed certain properties with mesne profits on the ground that they belonged to her mother, Maruthayi (who died in 1904) as her stridhanam and that the decree in O.S. No. 91 of 1907, on the file of the Sub-Court at Ootacamund, which the present petitioner obtained against Maruthayis son in respect of the said properties and the purchase thereunder are not valid and binding on her. With a view to enforce her claim she filed O.P. No. 19 of 1919 on the file of the Sub-Court for permission to sue as a pauper. The present petitioner Chinnammal opposed this application (Exhibit II). On the 30th of March, 1920 when the petition came on for hearing Papathi Ammal, the respondent, was absent and her Counsel stated that he had no instructions. The application was accordingly dismissed on the ground of her absence (Exhibit III). It is not clear from the records before me if Chinnammal or her Counsel was present on the occasion.

3. After the lapse of more than three years, from tbe dismissal of the previous application. Papathi Ammal filed O.P. No. 28 of 1923, out of which the present civil revision petition has arisen, for permission to sue as a pauper in respect of the same cause of action. Chinnammal filed an objection statement denying the alleged pauperism and contending that the dismissal of O.P. No. 19 of 1914 precluded her from maintaining this second petition. At the hearing, however, the only ground on which the petition was resisted was that the dismissal of the previous petition operated as a bar to the present petition under Order 33, Rule 15, C.P.C. The Subordinate Judge overruled this contention and granted leave as prayed for.

4. In this Court the order of the learned Subordinate Judge is attacked by the petitioner, Chinnammal, on three main grounds, namely, (1) that the present petition is barred under Order 33, Rule 15, C.P.C. (2) that it is barred under Order 9, C.P.C., and (3) that it should have been rejected, as the cause of action was obviously barred on the face of the petition itself.

5. Several decisions have been cited to me in support of the contention that the dismissal of an application in forma pauperis for default of appearance amounts to an " order refusing to allow the applicant to sue as a pauper" within the meaning of Order 33, Rule 15, C.P.C., but they have no direct bearing on the question at issue as none of them dealt with a case of dismissal for default of appearance. In one set of cases the facts show that the first application was dismissed as the applicant did not wish to proceed with the application [vide the decisions in Ranchod Morar v. Bezanji Edulji (1896) 20 Bom. 86, Baroda Dasi v. Upendranath Mandal (1919) 52 I.C. 562 and Begum v. Jafar Hassan A.I.R. 1924 Lah. 312; the question was whether the rejection of a petition under Order 33, Rule 5(a) operated as a bar under Order 33, Rule 16, C.P.C. - See the decision in Atul Chandra Sen v. Raja Peary Mohan Mookerjee (1916) 20 C.W.N. 669 and Howa v.. Sit Shein (1917) 9 L.B.R. 93. In both the sets of cases the petitioner was present at the hearing; and there was, in consequence, no question about dismissal for default of appearance and the legal effect thereof.

6. The question remains whether a dismissal for default of appearance amounts to a refusal to allow the applicant to sue as a pauper. Prima facie refusal would" indicate an enquiry and a dismissal of the application on the merits; at any rate, it cannot be said that there was a refusal where the applicant did not appear on the date of the hearing of the application and invite the Court to take it into consideration or deal with it in any manner. The observation of Chitty. J. in Baroda Dasi v. Upendranath Mandal (1919) 52 I.C. 562 to the effect that "This