The court cannot reject an application for permission to sue as a pauper under O. 33, R. 5 (d) without considering the allegations in the application. The court cannot discuss the merits of the case at the stage of considering the application for permission to sue as a pauper.

JUDGMENT :- This appeal has been filed against the order of the learned judge of the City Civil Court, Madras, dismissing the application filed by the appellants under O. 33, R. 1, Civil P. C. is permission to file the suit as paupers, the application was dismissed on the grounds that prima facie the appellants had the cause of action. Evidently the learned judge meant to reject the application under O. 33, R. 5 (d) which says that the Court shall reject an application for permission to sue as a pauper where the allegations do not show a cause of action. But the learned Judge overlooked us for this purpose what mattered were on the allegations in the application. Under the allegations themselves do not show a cause of action, the learned judge was no justified in dismissing the application. It is true that O. 33, Rr. 6 and 7 provided that, even where the Court itself does not reject the application under O. 33, Rr. 6 it can still reject the application on the grounds mentioned in O. 33, R.5, after enquiry in the presence of the respondents to the application.

But even after the enquiry the criteria to be satisfied is O. 33. R. 5 (d), and for that purpose it is only the allegations in the application which must be taken into account. What, however, the learned judge did in this case was to discuss the case of the appellants in the light of two documents marked on the side of the respondents. In effect, he discussed the merits of the case, though he purported to do so only in a prima facie manner. This is plainly illegal. The position is really well settled and is covered by a number of authorities which could be found collected in any text book for instance, Mulla (latest Edition) O. 33 R. 5, Note 6, at pages 1406 and 1407 and A. I. R. Commentaries (latest edition) O. 33, R. 5, note 5, and O. 33, R. 7, note 1 pages 3738 and 3748. Of the decisions it is sufficient to refer to two, one of the Supreme Court and the other of our High Court. In Vijaya Pratap Singh v. Dukh Haran Nath Singh, 1962 Supp 2 SCR 675 : AIR 1962 SC 941 their Lordships of the Supreme Court observed in pp. 681 and 682) (of SCR) : (at pp. 943, 944 of AIR) :

"By the express terms of R. 5, Cl. (d) the Court is concerned to ascertain whether the allegations made in the petition show a cause of action. The Court has not to see whether the claim made by the petitioner is likely, to succeed; it has merely to satisfy itself that the allegations made in the petition, if accepted as true, would entitle the petitioner to the relief he claims............... the jurisdiction does not extend to trial of issues which must fairly be left for decision at the hearing of the suit."

2. In Subramania Pillai v. Kavundappa Goundan, AIR 1943 Mad 663, Horwill, J. pointed out-

"It is true that under the present R. 6 of O. 33, Civil P. C., the Court is bound to admit evidence dealing with any of the questions that may be raised under R. 5; but R. 6 cannot have the effect of altering the meaning of Cl. (d) of R. 5. So whatever evidence may be let in, the Court must consider whether there is a cause of action or not only upon the allegations in the plaint together with the documents referred to in it."

I shall therefore, consider the question on the allegations in the plaint contained in the application. Paragraphs 3 and 4 of the application state thus-

"The property, house and ground bearing present municipal door No. 103, Karaneswarar Koil Street, Mylapore, Madras, more particularly described in the schedule hereunder, is the ancestral property of the plaintiffs who are now having at least a 3/8th share in the same. The said property originally was purchased by the plaintiff's paternal great grandfather Kuppuswami Gramani in 1911. There was a family arrangement and division of the property in 1923, when the several properties of the family were each allotted to and settled on each of his four sons (1) Munuswami (2) Batcha Gramani (3) Dakshinamurthi and (4) Punyakoti. The aforesaid property No

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