JUDGMENT
Ray, C.J.
1. This is revn. directed against an order passed by the Subordinate Judge of Puri disappearing the pltf. under Order 38, Rule 9, Civil P. C. The pltf. admittedly is a member of a Hindu Mitakahara Joint family & his father is one of the defts. in the suit. The suit is for setting aside certain alienations, made by his father & for recovery of the properties so alienated. The attack on those alienations is based upon immorality & illegality of the transactions. The pltf. applied for leave to sue in forma paupris. Of his appln. due notices were given to the Crown as well as the defts. opposite party. They filed their objections challenging the plea of pauperism but none of the contesting parties appeared at the date when the matter was heard by the Ct. The Ct. purporting to act under Order 33, Rule 7 granted the pltf. leave to sue as a pauper on which his appln. for leave was registered as a suit & was to proceed, as such, in the ordinary way except that he should be exempted from paying any further Ct.-f. on his applns. to be Bled in coarse of the suit. At a later stage, the opp. party filed an appln. under R. 9 (b) of the Order alleging that the pltf’a means were such that he ought not to be continued to sua as a pauper. The Ct. below, without making any enquiry as to whether the appects. before him were prevented, by any sufficient cause, from appearing at the date of hearing of the pltf’s. appln. for leave to sue as a pauper, & without making any sort of enquiry whatsoever which would, as a matter of principle, entitle the appects.. to reopen the order passed under Rule 7, entertained the appln. & -enquired into its merits. After such enquiry, he has believed the opo. party’s case & has come to the conclusion that the pltf. 13 possessed of means, such as would enable him to pay the requisite C.-f. & that, there, fore, he has no right to continue to sue as a pauper
2. The pltf. has come up in revn. against this. order & his point is that the Ct. had no jurisdiction to entertain the appln. so far as it did not disclose that the means referred to were such means as came into the pltf’s possession later later than the disposal of his leave appln. under R. 7; in other words, the contention is that the matter matter could have been urged before the Ct. at the stage when the leave was granted & could not be the subject matter of discussion at a later stage. This contention is based on the principle that any larder, either interlocutory or final in its nature, passed in presence of the in presence of the parties, should be taken poses of the proceedings or the suit in which it is passed & as far as it goes. The order may or may not be such on which a plea of res judicata can be based, but in order to avoid multiplicity of proceedings. , some sort of finality, limited with in the scope of the suit or the proceedings in which it is passed, has to be attributed to it. In -the present case, the means that were alleged to have been in pltf’s. possession were the family properties which admittedly were not acquired subsequent to either his filing the appln. to leave or to the registration of that appln. as a suit. Reliance, in support of the order, is paced upon the terms of a. 9 which, so far as material for purpose of this revn. read:
“The Ct. may, on the appln. of the deft.., of which seven days clear notice in writing has been given to the pltf. order has pltf. to be dispaupered if it appears that his means are such that he ought not to continue to sue as a pauper.”
3. Mr. Mobanty, appearing for the opp,.. party, says that there are no such words of limitation as will compel the interpretation that “the means”, referred to in cl. (b), must be “the means” that should have been acquired by or otherwise come to the possession of the pltf. after adjudication of the petn. for leave. But such limitation inheres in the word continue. If we assign the plain grammatical meaning to the word ‘continue. will appear evident that it assumes the fact that ha was an adjudged pauper at the date of commencement of the suit & the question arose if he should be allowed to continue as such. This rule is framed to operate not in derogation of the finality or validity of the order already passed as between the parties bat enabling the Ct. to dipauper the pltf. on the basis of events happening subsequently. This view appears to us to be very clear & convincing. When pushed to its logical conclusion, Mr, Mohanty’s contention, if accepted, would lead to what is absurd on the face of it. That is, throughout the progress of the suit, the deft, may go on without any rest whatsoever agitating & agitating the question of pltf.’a pauperism for times without number. This could never be the intention of the framers of the Rules.
4. Mr. Mohanty contract the provisions of R. 9 with the one appearing in the sama Order of the Code giving finality to an order disallowing leave to sue as pauper. That is because the pltif.’s liability for c.-f is a continuing liability & he can be ordered to pay whenever he comes by means to pay. On the other hand, if he had means enough to pay the requisite c.fs. at the commencement of the suit, he should bo liable to pay, notwithstanding subsequent change of his financial position reducing him to poverty.
5. The question can be viewed from another aspect, namely, that E. 9 makes it not obi gatory but discretionary on the Ot. to dispaupei a paupar pltf. In exercising this discretion, the Ct. Certainly will not be indulgent to the party who (sic) at his own risk not to appear on the date when he was called upon to appear & contest, if he liked but to come at any moment & compel the Ct. to reopen the matter. The rule, in matters of procedure too, that orders passed or deemed to have been passed in presence of the parties will not ordinarily be reopend for the mere asking of them, is fundamental. The party asking for such indulgence must lay a foundation of sufficient grounds so as to entitle him to ask the Ct. to recall his order. Under the circumstances. we are brand to hold that in the circumstances of the present case as the alleged means have not been acquired later, deft, 1 should not have been heard to say what ha ought to have said much earlier at the stage when the order under Rule 7 was to be passed. We have no direct authority on the point either way. There are some observations here & there which may, to some extent, lend support to our view. In the case of Mumtazan v. Rasulan, 23 ALL. 364, it was laid down that the validity or finality of an order granting a petn. for leave to sue as pauper could not be challenged in an appeal from the decree passed in the suit. The learned Judges who decided the case have observed that order passed at that stage is not an order affecting the decision of the suit & is an independent order prior to the suit &, therefore, not challengeable collaterally in the manner in which it was sought to be done in that case the case of Agent, B. N. Ely. Co. Ltd. v. Venkatekswami, 49 C. W. N. 551, by implication, supports our view. It says that means coming to the possession of the petnr. subsequent to his filing of his appln. for leave can be considered is a proceeding initiated under Rule. 9. Here, in the present case, at is not said that the means, referred to in the deft.’s petn. were acquired later than the filing of the leave appln. These cases do attribute finality to the order so far as it embraces adjudication of matters that could be urged by the parties at that ostage.
6. Mr. Mohanty, as a last recourse, relies upon the case of Banker Bharati v. Narasimha Bharati, 47 Bom. 106 : (A. I. R. (9) 1922 Bom 383), with a view to bringing the case within cl. (a) of a. 9. He contends that the pltf, is, at any rate, guilty of vexatious & improper conduct in the course of the suit for deliberate concealment of his means from the Ct. The clause, standing by itself, would refer to guilty conduct in course of the suit, that is, after the appln. is registered as a suit. Whether the suit will have the extended meaning so as to include the proceedings based on the leave appln. is a question which is not free from dificulty. Had the Bombay case, referred to, decided the point, we might have taken any other views. But that question has there been left open. That case is no authority for the proposition urged. over & above , the plea was never advanced in Ct. below. Some omission of certain properties from the inventory submitted by the pltf. will not necessarily amount to active concealment & thus to vexations & improper conduct in the course of the suit. Whether it is. a concealment as distinguished from mere omission is a question of fact. It’ appears from the facts of the present case that the pltf. is but a” junior member of the family & a wireless-operator, his father being alive. We do not know whether the father his any sympathy with his launching of this litigation. Under the circumstances, it is not necessarily probable that he had knowledge of the properties. Besides, it may be consistent with the honesty that as a junior member of the joint Mitakshara family, he did not consider that he had such disposing power over the joint family properties as to constitute “means’ in his hands. For the purpose of a speculative suit involving a protracted course for recovery of properties wrongfully alienated by a Hindu father is hardly a justifiable ground fox alienating joint family properties over which a member’s power of disposition is very limited. I shall not be understood to say that in my view a member of a joint family shall be always considered a pauper even if he has interest in substantial family property. I am considering whether omission thereof from the inventory attached to an appln. for leave to sue as pauper is necessarily vexatious. In these circumstances we cannot take notice of this plea as one available to Mr. Mohanty under cl. (a) of E. 9 of the Order at this stage.
7. We, therefore, hold that the order of the learned Subordinate Judge was without jurisdiction & should be set aside. In the result the Civil Revn. is allowed with costs. Hearing is assessed at one gold mohur.
Narasimham, J.
8. I agree.
