Randhir Singh, J.
1. This is an application in revision under Section 115, Civil P.C., against the order of the Civil Judge, Sitapur, dismissing an application for permission to sue in forma pauperis.
2. It appears that the applicant filed an application for permission to sue in forma pauperis under Order 33, Rule 1, Civil P.C. Notice was issued to the Government and to the opposite party and on the date of hearing of the application the learned Civil Judge dismissed the application on the ground that the suit was barred on the principle of res judicata. The applicant had, it is admitted, instituted a suit for a declaration of his title to the property which was the subject-matter of the dispute in the suit which has given rise to this revision. That suit was ultimately dismissed on the ground that the applicant had omitted to sue for possession. It was after the earlier suit had been dismissed that the applicant, along with one other person, made an application for permission to sue in forma pauperis. In this suit he had prayed for possession also.
3. The learned Civil Judge dismissed the application on the ground that the decision in the earlier suit operated as res judicata and it was not open to the applicant to maintain a second suit on the same cause of action. One other ground on which the application was opposed in the lower Court was that the suit was also barred by Order 2, Rule 2 of the Code of Civil Procedure. The lower Court has not expressed any opinion on the second point but has given its decision on the assumption that the suit was not barred under Order 2, Rule 2, Civil P.C. The learned counsel for the respondent has conceded in this Court that the view taken by the lower Court on the point of res judicata was not correct.
He has, however, argued that the suit was barred under Order 2, Rule 2, Civil P.C. Reliance has been placed on the provisions of Order 33, Rule 5(d) of the Code of Civil Procedure in support of his contention that it was open to the lower Court to have gone into the question even at the stage of hearing the application for pauperism. Rule 5 (d) of Order 33, Civil P.C., is as follows: 'The Court shall reject an application for permission to sue as a pauper where his allegations do not show a cause of action.' This rule has been amended by the Allahabad High Court by the addition of an Explanation, but no such Explanation has been added by the rules framed by the erstwhile Chief Court of Avadh. The question arises as to whether the Explanation would be applicable to districts situate in Oudh after the two Courts have been amalgamated into a single Court. This question, however, need hot be decided in this case as it is not material for the decision of this revision.
It has been argued on behalf of the respondent that the words of Rule 5(d) are wide enough to include the consideration of the maintainability of the suit and as such it would be open to the Court hearing an application of this nature togo into the question as to whether the suit was barred under Section 11, Civil P.C., or on any other ground such as limitation. The question came up for consideration before the Allahabad High Court in -- 'Bhajja v. Muhammad Said Khan' : AIR1932All543 . Tills case arose before the explanation was added to Rule 5(d) by the Allahabad High Court and it was held that it was not open to the Court in deciding whether the allegations did or did not show a cause or Action to decide questions of limitation, or other grounds on which the case could be thrown out on a point of law. Learned Counsel for the respondent has cited some rulings in support of the contention that a suit for possession alter a suit for a declaration has been dismissed would be barred under Order 2, Rule 2, Civil P.C. There are also some authorities which have taken the contrary view.
It is, however, not necessary to decide this pointin this revision as we feel that even if it Beopen to the Court to throw out an applicationfor permission to sue as a pauper if a suit isprima facie barred by some law, it would not beproper for the Court to enter into complicatedquestions of law in deciding the application atthat stage. It cannot be disputed that the question as to whether a second suit for possessionwould lie, after a suit for a declaration has beenthrown out on the ground that relief for possession had not been asked for, is not altogetherfree from difficulty and the learned Civil Judgewas, therefore, not justified in giving a findingon that point in deciding whether permissionshould or should not be granted to the applicantto sue as a pauper. The order passed by thelower Court should, therefore, be set aside. We accordingly set aside the order and remand the caseto the Court below with directions to re-admitthe same to its original number and to proceedto decide the application in accordance with lawkeeping in view the observations made by usabove. We, however, make no order as to costs.The application for stay is rejected.