MOORTI SHREE BEHARI Vs. PREM DAS

JUDGEMENT

(1.) I think the court below was in error in making an enquiry into the questions whether Balramdas through whom the deity as plaintiff sought per mission to sue in forma-pauperis was competent to represent the deity and whether the deity could maintain a suit against the Mahant. Such questions, in my opinion, cannot be enquired into under Order 33 of the C. P. Code. It was the duty of the learned Judge of the court below first to consider if the ap plication of the deity for permission to sue in forma-pauperis could be rejected on any of the grounds mentioned in R. 5 of O. 33 C. P. Code and if not then to make an enquiry whether the deity was possessed of sufficient means so as to pay the court-fees.

(2.) THE deity through Balramdas catae before the court with the allega tion, inter-alia that Mahant Prem Das had been mismanaging the endowed pro perties and had illegally alienated them to strangers. Mahant Prem Das and the transferees were impleaded as defend ants.

(3.) THE plaintiff in the proposed suit was the deity and not Balramdas. On a reading of the plaint in the pro-Posed suit it cannot be said that it does not disclose a cause of action in favour of the plaintiff deity for the reliefs claim ed in the suit. The learned Civil Judge, to my mind, unnecessarily entered into the controversy whether Balramdas was competent to be next friend of the deity, while considering the application under Order 33 of the C. P. Code. This would be a question which very properly could be agitated as defence to the suit after it was registered. An enquiry into such a question is not contemplated under O. 33 oi the C. P. Code.