1. We are invited in this Rule to set aside an order whichpurports to have been made by the Court below under Order XXXIII, rule 7,sub-rule 3 of the Civil Procedure Code of 1908. The opposite party before usmade an application in the Court below for leave to sue in forma pauperis onthe 15th September 1909. On the 9th October, he applied for amendment of theplaint. This was directed to be put up for orders on the 27th November.Objections were then filed on behalf of the present petitioner who had beenmade one of the defendants in the suit. One of these objections was that theplaint did not disclose any cause of action and that the application for leaveto sue in forma pauperis ought to be rejected on that ground alone. No furtherproceedings appear to have been taken in this matter till the 21st May 1910when the plaintiff presented another petition for amendment of the plaint andprayed that the previous application of the 9th October 1909 might be rejected.The petitioner was examined on that day and his application for leave to amendthe plaint was granted, which he was directed to file within the 28th May 1910.It was not till the 3rd June 1910, however, that he filed what is called theamended plaint, which was in substance a new plaint. Objection was at oncetaken on behalf of the petitioner before us on the ground that the new plaintcould not be entertained in the form in which it had been presented. TheSubordinate Judge thereupon heard arguments, and for reasons not quite intelligible,gave permission to the plaintiff to withdraw the new plaint which had beenpresented and to alter the plaint originally presented. The plaintiff availedhimself fully of this opportunity and the plaint as amended, which has beenplaced before us, shows that material alterations were made in the allegationscontained in the original plaint. On behalf of the present petitioner, theobjection appears to have been reiterated at that stage that the plaint,neither as originally drawn up nor as subsequently modified, disclosed anycause of action, and that the application ought to be dismissed on that ground.The Subordinate Judge overruled this objection and on the 28th June 1910,granted the application of the plaintiff for leave to sue in forma pauperis. Itis this order which we are now invited to revise.

2. The learned Vakil who has appeared to show cause hasargued that the plaint as amended; does disclose a cause of action and that itis not open to this Court to determine at this stage whether the plaintiff isor is not entitled to succeed on the basis of the alleged cause of action. Insupport of this contention, he has placed reliance upon the cases of Debi Dasv. Mohunt Ram Chandra Das : 2 C.W.N. 474 and Gopal ChandraNeogy v. Bigoo Mistry : 8 C.W.N. 70. These cases affirm theproposition that it is not open to a Court at the preliminary stage to enterinto the merits of the suit and to determine whether the cause of actionalleged in the plaint is or is not well-founded. The correctness of thisposition need not be disputed, though there has been some divergence ofjudicial opinion upon the question of the extent to which the Court is entitledto investigate the facts at the preliminary stage, with a view to determinewhether or not the allegations of the plaintiff disclose any cause of action.The learned Judges of the Allahabad High Court in the case of Kamrukh Nath v.Sundar Nath 20 A. 299 were inclined to the view that the Court is authorised bysection 407 of the Code of 1882, which corresponds with rule 5 of Order XXXIIIof the Code of 1908, to deal not merely with the question of jurisdiction, butalso to determine whether the person who asks for leave to sue in formapauperis has a good subsisting prima facie cause of action, capable ofenforcement in a Court of Justice and calling for an answer. Sir John Edge,C.J., pointed out in that case that the Court was not limited to theallegations in the plaint but might also take into account the allegations madeby the petitioner in the course of his examination under Order XXXIII, rule 7of the Code. The learned Chief Justice observed that if the allegations in theplaint were the sole matters to be looked to and the applicants were admittedlya pauper, the granting of the application to sue as a pauper would depend, noton whether he had any merits to go upon, but on the skill of the gentleman whodrafted the petition and the plaint and the examination as to the merits undersection 406 would be superfluous. The same view was adopted in the cases ofAmir Khan v. Alwar Manikkam : 27 M. 37 and Sankararama Ayyarv. Subramania Ayyar : 27 M. 120. A more restricted view,however, was subsequently adopted by the learned Judges of the Madras HighCourt in the case of Rathnam Pillai v. Pappa Pillai 13 M.L.J. 292, on the basisof which the decision in Sankararama v. Subramania Ayyar : 27M. 120 was subsequently reversed. See Sankararamier v. Subramania Aiyar 13 M.L.J.425. The latter view adopted by the learned Judges of the Madras High Court isto the effect that the investigation contemplated by the Code under OrderXXXIII, rule 4, does not refer at all to the merits but only to the question ofpauperism of the applicant. But this view is hardly in accord with rule 4,sub-rule (1), which provides that where the application is in proper form andis duly presented, the Court may, if it thinks fit, examine the applicant orhis agent, when the applicant is allowed to appear by agent, regarding themerits of the claim and the property of the applicant. The Court is, therefore,entitled in its discretion to interrogate the applicant as regards the meritsof the claim, obviously with a view to determine whether or not his allegationsshow a cause of action. Possibly, no hard and fast rule can be laid down withregard to the extent to which the investigation should proceed at thispreliminary stage; but, one point is beyond controversy, namely, that before anapplication for leave to sue in forma pauperis is granted, it is the duty ofthe Court to satisfy itself that the allegations of the petitioner do show acause of action; and the allegations are not only those made in the plaint, butalso include those made in the examination of the applicant before the Court.Tested in the light of this principle, what is the position of the presentpetitioner He asserts that in 1885 the owners of the disputed propertyappointed him an inspector of their zamindari on a salary of Rs. 30 a month andagreed to pay him Rs. 5,000 in cash and to grant him a mourasi mokurarisettlement of Mouzah Bhurutpur if he succeeded in making arrangements forpaying off their debts. He further asserts that the owners executed in hisfavour a power-of-attorney, evidently with a view to enable him to manage theirproperties. Subsequently, on the 16th March 1894, the owners executed amortgage of the properties in favour of Messrs. Andrew Yule & Co. Themortgagees sued to enforce their security in 1896, obtained a decree, and hadthe properties sold in execution in December 1897 when they were purchased bythe Nawab Bahadur of Murshidabad. The plaintiff asserts, that after all thesetransactions and after possession had been delivered by the Court to the purchaser,the owners executed, on the 11th June 1898, a deed of trust which was intendedto have a retrospective effect. It is or the strength of this deed of trust,which was not executed in his favour, but which he asserts was executed for hisbenefit in the name of Khundkar Muhammad Ahsan, that he seeks to recoverpossession of the disputed properties from the purchaser at the mortgage sale.A bare statement of these facts is sufficient to show that the plaint, as itnow stands, does not disclose any cause of action against the defendant. It isobvious that the Subordinate Judge did not take into consideration, as he wasbound to do, the allegations made in the plaint; had he done so, only oneconclusion would have been possible, namely, that leave should not be given tothe plaintiff to sue in forma pauperis.

3. The result, therefore, is that this Rule is madeabsolute, the order of the Court below, dated the 28th June 1910, isdischarged, and the application for leave to sue in forma pauperis isdismissed; we make no order as to costs.

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Nawab Bahadur of Murshidabadvs. Harish Chandra Acharjee(17.08.1910 - CALHC)