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Judgment
Wadsworth, J.—It seems to me that the lower Court was wrong in declining to consider this application on the merits. The case of
Subbaraya Devai v. Sundaresa Devai (1932) 36 L.W. 586 is authority for the view that Order 9, Rule 9 read along with Section 141, Civil
Procedure Code, does apply to pauper petitions. There is a conflict of authority on the question whether the dismissal for default of a pauper
petition bars a future petition on the same grounds. But whether the decision operates as res judicata or not, if the Court has jurisdiction to decide
a petition under Order 9, Rule 9 and Section 141, it has a duty to decide such a petition on its merits and cannot decline to exercise its jurisdiction
merely because there is an alternative remedy. The petition is allowed and the case is remanded to the lower Court for disposal on the merits.
Costs to abide the result.