Nachhattar Kaur vs Harnam Singh

D.V. Sehgal, J.—This revision petition is directed against the judgment of the learned Additional District Judge, Barnila, dated February 25, 1987, whereby he has dismissed an Jappeal filed by the Petitioner herein against the order dated August 1, 1985 passed by the learned trial Court.

The facts, in brief, are that Nachhattar Kaur Petitioner is the widow of one Mohiader Singh, who was son of Harnam Singh, Respondent. She filed a suit on April 2 1984 for recovery of Rs. 500/- per month as maintenance allowance by creating charge on the land mentioned in the plaint. She also filed an application under Order 33 Rule 1 of the CPC (for short ''the Code'') for leave to file the said suit as an indigent person. However, on October 18, 1984, the Petitioner did not appear in the court and her suit/application were dismissed in default. On the same date she filed yet another suit and sought leave to file the same as indigent person. The same was dismissed by the learned trial court. On appeal its order has been affirmed by the learned Additional District Judge. The is how the Petitioner has approached this Court through the present revision petition.

I have heard the learned Counsel for the parties. The Courts below have held that since the application under Order 33 Rule 1 of the Code, filed by the Petitioner had been dismissed in the presence of the Respondent or his counsel, dismissal of the same came within the ambit of Order 9 Rule 8 and Order 33 Rule 15 of the Code. The Petitioner could only seek restoration of the earlier suit/application, but fresh suit/application by her is barred by Order 9 Rule 9 of the Code.

The suit filed by the Petitioner was for grant of maintenance. It is not disputed before me that the claim for maintenance in the earlier suit was not for any specific period preceding the date of institution of the suit Similar is the position in the instant suit. This means that the suit for grant of maintenance has been filed from the date of the institution of the fresh suit, which is decidedly based on a fresh cause of action. Order 9 Rule 9 ibid lays down that where a suit is wholly or partly dismissed under Rule 8, the Plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. As observed above, the suit is not based on the same cause of action. As a natural corollary, the application for leave to file the suit as an indigent person in respect of the suit based on fresh cause of action is not barred by the provisions of Order 33 Rule 15 of the Code.

Consequently I allow this revision petition, set aside the impugned orders and direct the learned trial court to decide the question whether the Petitioner is or is not an indigent person, on merits, in accordance with law. The parties are, however, left to bear their own costs.

The parties, through their counsel, are directed to appear before the learned trial Court on November 22, 198S.