JUDGMENT

Pramada Charan Banerji and Gokul Prasad, JJ. - This is an application for the revision of an order of the Subordinate Judge of Gorakhpur dismissing the application made by the applicants for leave to sue as paupers. The claim was one for recovery of immovable property by right of inheritance. One of the defendants disputed the title of the plaintiffs to maintain the suit and also denied that the plaintiffs were paupers. The court below took evidence upon the question of the plaintiffs' title, and after considering that evidence came to the conclusion that the plaintiffs had no right to maintain the suit. It also was of opinion that the plaintiffs' pauperism had not been established. On these grounds the application was rejected. The first contention before us is that the court in proceeding to try the question of the plaintiffs' title exercised a jurisdiction not vested in it by law. In our opinion this contention is well-founded. Order XXXIII of the first schedule to the CPC Jays down the procedure to be followed upon an application being presented to the court for leave to sue as a, pauper. Rule 5 of that order specifies the grounds upon which the application may be rejected, and one of those grounds, as mentioned in Clause (d) of the rule, is that the allegations do noli show a cause of action. Rule 6 provides that if the court does not reject the application on any of the grounds mentioned in Rule 5, it should proceed to take evidence upon the question of pauperism. The only matter in regard to which evidence may be taken is the question of pauperism, as provided in Rule 6. Rule 7 provides that on the day fixed arguments may be heard and the evidence produced may be considered and the court may grant or refuse the application. The only matter in regard to which evidence may be taken is. as stated above, that mentioned in Rule 6, that is to say, the question of the pauperism or otherwise of the applicant. In our opinion, Clause (d) of Rule 5 enables the court to reject the application if, upon the allegations made by the applicant in the plaint or in his deposition as recorded under Rule 4, no cause of action is shown. It does not empower the court to try the question of the plaintiff's title after taking evidence on that question and in fact to try the suit on the merits before the application for leave to sue is granted. In our opinion if, upon the allegations contained in the plaint and in the deposition of the plaintiff as recorded under Rule 4, it appears to the court that the plaintiff has no cause of action for maintaining the suit, the application may be rejected, but we do not think that the law contemplates that there should be a regular trial of the question of title upon taking evidence from both parties before the application is granted or refused. It would be prejudging the case if such evidence were taken. This view is in consonance with the decision of the Calcutta High Court in Jogendra Narayan Roy v. Durga Charan Guha Thakurta. ILR (1918) Cal. 651. Our attention has been drawn to a ruling of the Patna High Court in Charu Sila Dasi v. Haran Chandra Mukerjee 50 Ind.Cas 520. If the learned Judges who decided that case intended to lay down the rule that, in order that the court may be satisfied that the plaintiff has a subsisting cause of action, the court may take evidence upon the merits of the case, we are unable, with great respect, to agree with them. The learned vakil for the opposite party relied upon the decision of this Court in Kamrakh Nath v. Sundar Nath ILR (1898) All. 299. That case is, in our opinion, distinguishable from the present case. In that case what was held was that the court should reject the application if on the statements which are placed before the court it appears that the plaintiff has no subsisting right of suit. It was not held in that case that the court might take evidence for the purpose of determining whether the plaintiff had the alleged right of suit. That was not