BALBAHADUR MISSIR Vs. NARBADA PRASAD

JUDGEMENT

(1.) At first I was of the opinion that this question was not subject to the revisional jurisdiction of this Court. The rule which has been granted was against the order of the Subordinate Judge dismissing the applicant's case to be allowed to sue in forma pauperis. There is no doubt as to his poverty, but the learned Judge comes to the conclusion that there was no cause of action. If that conclusion had been come to regularly, that is to say, in a regular manner, this Court would be in grave difficulties in interfering with the order. But the procedure adopted by the learned Judge in the Court below is wholly irregular in my judgment and therefore the matter comes quite clearly within Section 115, Civil P.C. Mr. Sinha who appears on behalf of the respondents relies upon the decision in Kamrakh Nath V/s. Sunder Nath (1898) 20 All 299 decided by Burkitt, J., and Sir John Edge. But at the date of the decision the Code of 1882 was in force and since that date the words have been materially altered. In the old Code the question which had to be determined was the poverty of the alleged pauper, and Clause (c), Section 407, provides that a Court shall reject the application if it appears that his allegations do not show a right to sue in such Court . Allegations showing a right to Sue might be construed in two ways: it might be construed in the sense of the words used in Order 33, Rule 5(d) or it might be construed in the way that the learned Judges to whom I have referred construed it. But it is in any event no authority for the proposition that the Code means when it says that the allegations do not show a cause of action, that the Judge is entitled to go into the merits of the case. The scheme of Orders 5, 6 and 7 is clear.

(2.) The first thing a Court is to be satisfied with is whether the allegations show a cause of action. I am speaking of course with regard to the point under discussion. Now the allegations may be contained in a plaint or, as will be seen from a later rule, may be plaint plus his statement in evidence. But whether those allegations show a cause of action is merely a matter of whether on the face of them, if they are believed, they show a cause of action. The merits are not to be discussed, and the learned Judges have got no jurisdiction to come to any conclusion as to whether the allegations in the plaint or statement by the proposed plaintiff himself is true or not. Rule 6 provides for a hearing in the presence of both the applicant and the proposed defendant and Clause 7 provides for the procedure to take place at that hearing. Rule 7 at first provides that the Court may examine witnesses produced by either party and may examine the applicant or his agent, and shall make a memorandum of the substance of their evidence. But it is to be noted that the evidence which the applicant has to give is evidence in proof not of his cause of action but in proof of his pauperism: that is provided by Rule 6, Order 33. Then comes sub-C1. (2) of Rule 7 which provides for argument offered by the proposed defendant that the statements on the face of them disclose no cause of action or the evidence as to pauperism is not to be believed.

(3.) But it is perfectly obvious that although the question of his pauperism is a question of fact, there is nothing in the rules to which I have referred which would in any way entitle the Judge to go into the merits of the plaintiff's case. If authority is needed for that statement it is to be found in the decision of this Court in Mahomed Nasrullah V/s. Mahomed Shukurullah 1925 Pat 30 where Jwala Prasad and Adami, JJ., came to the conclusion that under the rules the Judge could not examine the witnesses for deciding the question of limitation. It is to be noted that that decision does not go so far as to state that where on the plaintiff's own showing his action is barred by limitation, the Judge would not be entitled to reject the application. That is entirely a different matter and it has nothing to do with this Court in this particular case in any event. But the authority to which I have referred (and there are abundant authorities in this respect), shows in my judgment the obvious and the only meaning which can be placed by any lawyer upon the expressions disclosed in Clause (d), Rule 5, Order 33, Civil P.C. "Where his allegations do not show a cause of action." The learned Judge going into the merits of the applicant's claim has acted with material irregularity and his order must be set aside. It is quite clear on the face of his allegations that he has got a cause of action. Whether he could prove those allegations or not was an entirely different matter and was no concern of the Judge. The rule is therefore made absolute with costs, hearing fee two gold mohurs.