1. This application is directed against an order of the Subordinate Judge of Mirzapur passed on a petition by the present applicant to be allowed to bring a suit in forma pauperis. The applicant sought permission to sue as a pauper the Raja of Barhar and one Bechanu Singh on the allegation that he had taken a lease of a certain jungle in Mirzapur from the Raja and that before the expiry of the lease the Raja had granted a lease of the same jungle to Bachanu Singh. He claimed one lac of rupees as damages and he alleged that he had no funds with which to prosecute his suit. The learned Subordinate Judge rejected the application as far as it concerned the Raja on the ground that the application did not disclose any cause of action against the Raja. He allowed the prayer to sue as a pauper the subsequent lessee. He however made this order conditional on the applicant furnishing satisfactory security for the court-fee legally leviable on his claim.
2. The applicant has come up to this Court in revision from this order of the learned Subordinate Judge. He-challenges the findings of the learned Subordinate Judge that the plaint does not disclose any cause of action against Raja, on the ground that the Court below has entered into the merits of the case in coming to this decision instead of confining itself to the allegations of the petitioner. He also contends that the learned Subordinate Judge should not have called upon him to furnish security. We have heard the learned Counsel for the opposite parties and also the learned Government Advocate on behalf of the Secretary of State. It is clear to us that the learned Subordinate Judge has not properly appreciated the matters that he was called upon to decide in dealing with the application to sue as a pauper.
3. His first duty was to consider the matters referred to in Order 33, Rule 5, Civil P.C. and to decide, inter alia, whether the allegations in the application do or do not disclose a cause of action. It is conceded by the learned Counsel for the opposite parties, and is indeed obvious from a perusal of the application, that the learned Subordinate Judge has drawn on materials not included in the allegations of the applicant in coming to the decision that no cause of action is disclosed against the Raja. In the event of the application not being rejected under Rule 5, his next duty was to make an inquiry in accordance with the procedure laid down in Rules 6 and 7, Order 33 in order to determine whether in fact the applicant is or is not a pauper. The learned Subordinate Judge appears to have ignored these provisions of the law altogether.
4. Further it is evident that the order to furnish security for the court-fee as a condition of being permitted to sue as a pauper would stultify the granting of such permission. In the circumstances it appears to us that the proper course is to remand the case to the Court below for decision de novo of the application for permission to sue as a pauper or not and also deal with the other matters to be considered in the case in the light of the above observations. The attention of the Court below is drawn to the following cases which may be found helpful in his connexion: Ramachandra Raju v. Venkiah A.I.R. 1927 Mad. 441, Lachmi v. Ram Bahadur : AIR1925All275 and Mt. Hafizan v. Abdul Karim (1908) 12 CWN 163. We make no order as to costs.