Vijayendra Tirthaswami vs Sudhindra Tirthaswami and Others

Subramania Aiyar, J.—It is contended for the petitioner that the, Subordinate Judge acted illegally and without jurisdiction in taking evidence

and going into the question whether the plaintiff''s claim was res judicata and whether it was barred by limitation. I cannot accept this contention :

Section 409 CPC permits the court to take evidence and hear the parties for the purpose of determining whether the applicant is or is not subject

to any of the prohibitions specified in Section 407. Under the latter Section the application may be refused if the appellant fails to satisfy the court

that he has a right to sue. This has been construed to mean that the appellant should show that he, has a good subsisting cause of action capable of

enforcement in Court. Chat-tarpal Singh v. Raja Ram ILR (1885) A. 661 I think therefore the Subordinate judge was entitled to consider the

questions raised before him by the Counter-petitioner. The case in K. Ranganayaka Animal v. Venkatachellapati Nayudu ILR (1881) M. 323 is

not really in conflict with this view. I do not understand that case to lay down that the court is bound by the allegations in the application and the

court could hold no enquiry whatsoever as to whether there is any foundation for those allegations or not. Such a view would be opposed to the

provisions of Section 409 which permits the court to take evidence.

It is next urged that even if the Subordinate Judge had power to consider the questions of res judicata and limitation, his conclusion against the

petitioner is unwarranted bythe circumstances of the case. I am unable to take this view. I think that in a case where there is ground for reasonable

doubt leave should be granted and not refused. But I consider this is a very clear case and hold that the Subordinate Judge was right in concluding

that the claim was res judicata. 1 dismiss the petition with costs