The main legal point established in the judgment is that a material irregularity in the procedure adopted by the lower court can lead to the setting aside of its orders and a direction for the case to be heard afresh.

Sinha, C J—This application in revision is directed against the orders dated 7-12-1951 passed by the Civil Judge Class II, Malkapur, refusing the Petitioner's application for leave to sue in 'forma pauperis'.

2. It appears that when the application was made the Court directed notice to issue to the non-Applicant as also the Collector by its order dated 19-6-1951. The case had to be adjourned for non-service of notice, but even then it does not appear from the order-sheet or from the record that the notice was actually served on the Collector or the Government Pleader.

On 29th November in the last hours, at about 4-30 p.m., the Court examined the Applicant and adjourned the case for further hearing on 1-12-1951.

On 1-12-1951 the case was called out in the early hours, and as the pleader for the Petitioner was absent, the Court examined the three witnesses of the opposite party and passed orders on 7th December disallowing the application chiefly on the ground that the Petitioner was possessed of a gold ring and 'Patalyas' without coming to any conclusion as to the value of those ornaments, assuming that they are there with her.

3. This application was moved in this Court chiefly on the ground that the Court below had passed the orders completely ignoring the result of the enquiry by the Collector; but on examining the record the learned Counsel for the Petitioner has completely changed his front and has argued that as a matter of fact though notice had been directed to be issued to the non-Applicant and the Collector, there is nothing on record to show that the Collector had actually been served or that he put in any report.

I have examined the record, and it does appear that there is no report of service on the Collector or any report by him as to the alleged pauperism of the Petitioner. Hence the learned Counsel for the Petitioner has put it at the forefront of his arguments that the proceedings are vitiated by this material irregularity as held in the case of the- Province of Orissa v. Dibyasingh Nand, 1941 AIR(Pat) 594.

It has also been urged that the orders were passed by the Court below without any cross-examination of the non-Applicant's witnesses by the Petitioner's pleader. That is a ground which does not appeal to me because the Petitioner has to thank herself or her pleader if they were not present at the time the case was taken up on the adjourned date. The Court is not bound to wait for any length of time and thus waste public time if the pleaders do not turn up in Court at the right moment.

4. It has also been urged that the Court below has brushed aside the non-Applicant's evidence to the effect that the Petitioner was possessed of a large number of ornaments and that it has relied upon the testimony of the non-Applicant's witnesses to the effect that she was possessed de-finitely of a gold ring and 'patalyas'. That again is a question of fact, which may have been deter-mined by the Court rightly or wrongly, and such a decision, erroneous or otherwise, is not amenable to the revisional jurisdiction of this Court.

5. Hence the only question which deserves serious consideration is whether the Petitioner should be permitted to raise a ground not taken in her petition; as a matter of fact, a ground which is just to the contrary of what had been specifically taken in the petition made in this Court. In my opinion, once the matter has come to the notice of the Court that there has been a material irregularity, whether that point had or had not been specifically taken in the application, this Court may take that into consideration, specially when the whole record is before the Court and there Is no doubt about what actually took place.

It appears on an examination of the record that in spite of the fact that the Court had directed notice to issue to the Collector notice was not actually served on the Collector, or, at any rate, there is no return of such notice. One thing is absolutely clear that there is no report by th