JUDGMENT
Charles Arnold White, C.J.
1. On an application for leave to sue in forma pauperis the District Munsif fixed a day under Section 408 and held an investigation under Section 409 of the Code of Civil Procedure. At this investigation no evidence appears to have been given either in proof or in disproof of the pauperism of the applicant, but certain documents were put in evidence on behalf of the defendant ; and the Court, relying on the decision reported in Vijendra Thirthaswami v. Sudhindra Thirthaswami I.L.R, 19 M. 197 dismissed the application on the ground that the evidence on record showed the applicant had no subsisting cause of action. I think the evidence referred to in. Section 409 is evidence in proof or disproof of the pauperism of the applicantnot evidence as to the merits of this case.
2. I cannot adopt the view taken by Sir Subramania Aiyar ,J., in the case of Vijendra Thirthasami v. Sudhindra Thirthaswami I.I.R. 19 M. 197, and I think K. Ranganayaka Ammal v. K. Venkatachellapathy I.L.R. 4 M. 323 was rightly decided,
3. I consider the Munsif acted illegally in allowing evidence to be put in on behalf of the defendant with reference to the merits of the claim of the party applying for leave to sue in forma pauperis, and in dismissing the application on the ground that on the evidence on record the applicant had no subsisting cause of action.
Bhashyam Aiyangar, J.
4. I concur.
Benson, J.
5. I think that the decision in the case of K. Ranganyaka Ammal v. K. Venkatachellapathy Nayudu I.L.R. 4 M. 323 states the law applicable to the facts of the present case correctly. I am unable to reconcile it with the decision in Vijendra Thirthaswami v. Sudhindra Thirthaswami I.L.R. 19 M. 197 and with every respect for the learned Judge who decided the case, I must say that I am unable to concur in the view taken by him as to Section 409, Civil Procedure Code. The Full Bench case of Chattarpal v. Raja Ram I.L.R. 7 A 661 is not opposed to the view I take.
6. The District Munsif in the enquiry made under Section 409 allowed witnesses to be examined and documents put in evidence as to the merits of the petitioner’s claim and then decided on the strength of that evidence that the petitioner had not a good case on the merits and therefore dismissed his suit. This course was not warranted by law. The evidence should have been confined to the question of the petitioner’s pauperism. If that was proved, and if the plaint supplemented by the examination of the petitioner held under Section 406 showed that he had a right to sue, the District Munsif ought to have allowed the petition and proceeded to hear the suit in due course. The receipt of evidence as to the merits during the enquiry into pauperism and the decision of the case on the merits at that stage was, in my judgment, a material irregularity and, in practice, would be likely to lead to waste of the Court’s time and to confusion and irregularity of procedure.
7. I would, therefore, answer in the affirmative the question referred for our decision.
