Pramada Charan Banerji and Gokul Prasad, JJ.
1. This is an application for the revision of an order of the Subordinate Judge of Gorakhpur dismissing the application made by the applicants for leave to sue as paupers. The claim was one for recovery of immovable property by right of inheritance. One of the defendants disputed the title of the plaintiffs to maintain the suit and also denied that the plaintiffs were paupers. The court below took evidence upon the question of the plaintiffs' title, and after considering that evidence came to the conclusion that the plaintiffs had no right to maintain the suit. It also was of opinion that the plaintiffs' pauperism had not been established. On these grounds the application was rejected. The first contention before us is that the court in proceeding to try the question of the plaintiffs' title exercised a jurisdiction not vested in it by law. In our opinion this contention is well-founded. Order XXXIII of the first schedule to the Code of Civil Procedure Jays down the procedure to be followed upon an application being presented to the court for leave to sue as a, pauper. Rule 5 of that order specifies the grounds upon which the application may be rejected, and one of those grounds, as mentioned in Clause (d) of the rule, is that the allegations do noli show a cause of action. Rule 6 provides that if the court does not reject the application on any of the grounds mentioned in Rule 5, it should proceed to take evidence upon the question of pauperism. The only matter in regard to which evidence may be taken is the question of pauperism, as provided in Rule 6. Rule 7 provides that on the day fixed arguments may be heard and the evidence produced may be considered and the court may grant or refuse the application. The only matter in regard to which evidence may be taken is. as stated above, that mentioned in Rule 6, that is to say, the question of the pauperism or otherwise of the applicant. In our opinion, Clause (d) of Rule 5 enables the court to reject the application if, upon the allegations made by the applicant in the plaint or in his deposition as recorded under Rule 4, no cause of action is shown. It does not empower the court to try the question of the plaintiff's title after taking evidence on that question and in fact to try the suit on the merits before the application for leave to sue is granted. In our opinion if, upon the allegations contained in the plaint and in the deposition of the plaintiff as recorded under Rule 4, it appears to the court that the plaintiff has no cause of action for maintaining the suit, the application may be rejected, but we do not think that the law contemplates that there should be a regular trial of the question of title upon taking evidence from both parties before the application is granted or refused. It would be prejudging the case if such evidence were taken. This view is in consonance with the decision of the Calcutta High Court in Jogendra Narayan Roy v. Durga Charan Guha Thakurta. (1918) I.L.R. 46 Calc, 651. Our attention has been drawn to a ruling of the Patna High Court in Charu Sila Dasi v. Haran Chandra Mukerjee (1919) 50 Indian Cases 520. If the learned Judges who decided that case intended to lay down the rule that, in order that the court may be satisfied that the plaintiff has a subsisting cause of action, the court may take evidence upon the merits of the case, we are unable, with great respect, to agree with them. The learned vakil for the opposite party relied upon the decision of this Court in Kamrakh Nath v. Sundar Nath (1898) I.L.R. 20 All. 299. That case is, in our opinion, distinguishable from the present case. In that case what was held was that the court should reject the application if on the statements which are placed before the court it appears that the plaintiff has no subsisting right of suit. It was not held in that case that the court might take evidence for the purpose of determining whether the plaintiff had the alleged right of suit. That was not a case in which any evidence had been taken. Apparently the plaintiff was examined and upon a consideration of the statements made by him in his examination the court came to the conclusion that no right to bring the suit was shown. That case, therefore, does not afford us any guide in the matter now before us. An earlier Full Bench ruling of this Court in Chattarpal Singh v. Raja Ram (1885) I.L.R., 7 All 661 was referred to by the learned Judges in their judgment. There the question was whether the only point upon which the court could refuse the application was the absence of jurisdiction to entertain the suit. According to the wording of Clause (d) of Rule 5 of the present Code no question of jurisdiction can arise. What has to be seen is whether upon the allegations made by the plaintiff, that is the allegations contained in the plaint and in the plaintiff's examination under Rule 4, a cause of action is disclosed. If these allegations did not show a cause of action, the court was bound to reject the application. But, in our judgment, the court is not entitled to take evidence from the parties upon the question of the plaintiff's title before coming to the conclusion whether it would grant or refuse the application. We think that, in the present case, in taking evidence on the question of title the court exercised a jurisdiction not vested in it by law.
2. As to the pauperism of the plaintiffs the court below makes some general observations to the effect that the pauperism of the plaintiffs was not proved. The court did not consider the evidence placed before it upon the question whether the plaintiffs had the means to pay the amount of court fee requisite for the institution of the suit. The learned Subordinate Judge said that in another suit the plaintiff had paid a large fee to a certain pleader. It also said that she ownea two sewing machines; but it did not consider the value of the sewing machines, nor did it consider any point about the means of the plaintiffs to pay the requisite amount of court fee. In our opinion the question of pauperism was not tried by the court below. Therefore we hold that in trying the question of title the court exercised a jurisdiction not vested in it by law, and in not trying the question of the plaintiffs' pauperism it did not exercise the jurisdiction which was vested in it. We accordingly allow the application, set aside the order of the Court below and send back the case to that court in order that the question of the pauperism of the applicants may be determined. We may mention that when notice was issued to the Government pleader as to the pauperism of the plaintiffs, no objection was put forward on behalf of the Government. This was a matter which the court should also have taken into consideration. Costs here and hitherto will be costs in the cause.