1. The question for decision is whether, when an application to sue in forma pauperis is rejected under Order 33, Rule 5(a), a second application is barred by the provisions of Rule 15 of that order ? The Calcutta High Court in Atul Chandra Sen v. Peary Mohan Mukerjee (1915) 20 C.W.N. 669 held that there is no distinction between orders of rejection passed under Rule 5 and orders of refusal passed under Rule 7 and this view has been adopted in All Afzal v. Purna Chandra (1924) 40 C.L.J. 188. There is also a case in Ranchod Morar v. Bezanji Edulji (1894) I.L.R. 20B. 86, where a similar view appears to have prevailed.
2. On the contrary, we have the authority of the Lahore High Court in Bal Knar v. Shib Das (1919) 56 I.C. 207 and of a Full Bench of the Burma Chief Court in Howa v. Sit Shein (1917) 42 I.C. 803 (F.B.) that a distinction should be made between these two class of orders. They have held accordingly that an order passed summarily under Rule 5(a) is not a bar to a second application. The leading case is the one in Atul Chandra Sen v. Peary Mohan Mukerjee (1915) 20 C.W.N. 669 which distinctly holds that there is no distinction between orders under Rule 5 and orders under Rule 7. No reason is given for coming to this conclusion; and, as pointed out by the Burma Chief Court, there is at least a verbal difference between these two orders. I am inclined to think that there is more than a verbal difference. The orders are different in kind. Under Rule 5 the Court rejects an application summarily and without enquiry, whereas under Rule 7 an order is passed after due enquiry into the merits of the application. The principle underlying Rule 15 appears to be that of res judicata, viz., that the Court will not entertain a second application when the first has been dismissed on the ground that the petitioner is not entitled to sue as a pauper. Any order passed under Rule 5(a) is of a summary nature based on the petition itself or on facts which are apparent at the time of presentation of the petition. For instance, if the petition does not contain a schedule of property or if it is presented by the alleged pauper’s agent, it has to be rejected, and if. we are to apply the ruling of the Calcutta High Court, it can never be represented. This goes a good deal further than the principle of res judicata for it gives the force of res judicata to a summary order passed without enquiry or contest and consequently, I think it is doubtful whether that is the intention of the legislature. It is noticeable that Rule 15 refers to an order ” refusing to allow an applicant to sue as a pauper ” and these words are the identical words used in Rule 7,cl. (1894) I.L.R. 20B. 86 and it is clear that Rule 15 applies to such an order. I can see no reason for extending it to include an order rejecting an application when such order does not either in terms, or by implication, refuse to allow an applicant to sue as a pauper. For instance, the rejection and return of a petition presented by an agent can hardly be said to amount to a refusal to allow the petitioner to sue as a pauper for there is no provision specifically prohibiting its representation by the pauper himself. In the present case the order rejecting the application is very specific. The District Munsif states that he has to reject the petition but that he ought not to be understood as expressing any opinion on the question whether the plaintiff is a pauper or not, and there is clearly no adjudication on the merits by this order. I am therefore of opinion that such an order is not a bar to the subsequent presentation of a petition based on the same right to sue. This view was adopted by my learned brother in Chinnammal v. Papathi Animal (1924) 85 I.C. 982 which was a case where the first petition had been dismissed for default. I would therefore hold that when there has been no enquiry under Rule 6 and a consequent order under Rule 7 the order rejecting the application is not a bar to a second application.
3. I may mention here that both in Ranchod Morar v. Bezanji Edulji (1894) I.L.R. 20B. 86 and Atul Chandra Sen v. Peary Mohan Mukerjee (1915) 20 C.W.N. 669 there had been an enquiry under Rule 6 although the Court purported to pass an order under Rule 5.
4. I would therefore allow the petition and remand the case for disposal on the merits. The respondent will pay the petitioner’s costs.
Madhavan Nair, J.
5. I entirely agree. In my judgment in Chinnammal v. Papathi Ammal (1924) 85 I.C. 982. I have indicated the view that Order 33, Rule 15, Civil Procedure Code, contemplates an enquiry and dismissal of ” the application to sue as a pauper” on the merits. Since that has not taken place in this case the present application is not barred under the provisions of that order. It must therefore be disposed of on the merits.