JUDGMENT
Ramesam, J.
1. This revision petition is against an order of the District Judge of Anantapur refusing to permit the plaintiff to sue in forma pauperis. The suit was for a declaration that the alleged Will of his maternal grandfather was not genuine. The plaintiff is described in the plaint as aged 18. The District Judge has found that the petitioner is able to pay the Court-fee on his plaint and has already expressed an opinion on the merits of the case that there was a former litigation started by his grandmother and that the judgment in that suit bars the present suit as res judicata, and even if it is not res judicata, the petitioner has not got any subsisting prima facie cause of action He relies on Amirtham v. Alwar Manikkam [1904] 27 Mad. 37, The plaintiff has filed this petition.
2. Two points have been argued before me. The first is that the District Judge is wrong in going into the merits of the plaintiff’s case as disclosed in the plaint. The decision in Amirtham v. Alwar Manikkam [1904] 27 Mad. 37 was followed in Sankararama Ayyar v. Subaramania Ayyar [1904] 27 Mad. 120. But the latter decision was reversed in Letters Patent appeal and we must now take it that it is not permissible in a pauper petition to go into an elaborate enquiry on the merits of the plaintiff’s case. But at the same time, some effect must be given to the provisions in Order 33, Rule 5, which permits the Court to reject the plaintiff’s application on the ground that his allegations do not show a cause of action. Mr. Somayya contends for the respondent that while an elaborate enquiry into the merits is prohibited, if on a slight enquiry it can be shown that the plaintiff has really no subsisting right, it is open to the Court to express an opinion on such a matter. Here, what has been done is the exhibiting of Ex. 1, the judgment in the former suit. On the other hand, Mr. Sesha Ayyangar relies on Govindasmi Pillai v. Municipal Council, Kumbakonam [1918] 41 Mad. 620 which has been followed in some oases. According to that case the Court cannot go info the question of limitation to see if the petitioner has a subsisting cause of action.
3. I do not think it necessary to express any final opinion on this question as this petition may be disposed, of on the other ground raised by the petitioner. But to safeguard the interests of the petitioner, I think it is necessary for me to formally vacate this portion of the lower Court’s order so that if the petitioner choose to file a regular suit the plea of res judicata may not be pub forward by reason of anything contained in this order. I, therefore, direct that para. 4 of the learned Judge’s order be considered as expunged from his Judgment.
4. The second point argued is that the learned Judge erred in holding that the petitioner has not shown that he is unable to pay the Court-fee. On this point the defendant examined two witnesses to show that the plaintiff possesses 16 indigo vats and 6 looms. The District Judge rejected their evidence to the extent that the vats and looms were said to belong to the plaintiff. The Judge says that the looms and the vats are in the house of the petitioner’s grandmother and must be presumed to belong to the mother and grandmother of the petitioner. But he proceeds to consider the evidence of D.W. No. 2 according to which the plaintiff gets an income of Rs. 40 or Rs. 50 per mensem. If it were open to me to weigh the evidence, it seems to me that the District Judge has formed too high an opinion as to the income to be derived from handlooms and indigo vats. But it is not open to me to go into the evidence whatever my view of the evidence may be. The District Judge makes his own calculations and thinks that the plaintiff must have been saving during three years prior to the petition at the rate of Rs 200 per annum. Incidentally, I must mention that D.W. No. 1 says that the plaintiff has been earning for the last 16 years. Seeing that his age is 18 this evidence is absurd. There is no absurdity about the evidence of D.W. No. 2.
5. The result is I am unable to interfere in revision and to help the petitioner. I do this more readily because the heavy Court-fee he has to pay in this suit was particularly the result of his own doing, It is really a declaratory suit: but because he has added a prayer for the appointment of a Reciever he has to pay a heavy Court-fee. Seeing that there is a regular declaratory suit open to him, and probably he may conduct his case more cheaply by altering the frame of his suit, I see no reason to interfere in this petition.
6. The petition is dismissed with costs
