Vijendra Tirtha Swami vs Sudhindra Tirtha Swami and Others

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

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

Section 409, Civil Procedure Code, 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

be 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 Chattarpal Singh v. Raja Ram ILR 7 All. 661.

I think, therefore, the Subordinate Judge was empowered to consider the questions raised before him by the counter-petitioner. The case of

Koka Ranganayaka Ammal v. Koka Venkatachellapati Nayudu ILR 4 Mad. 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 can hold no inquiry 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 argued that even if the Subordinate Judge had power to consider the questions of res judicata and limitation, his conclusion against the

petitioner is unwarranted by the circumstances of the case. I am unable to take this view. It is true that in a case where there is ground for

reasonable doubt, leave should be granted and not refused. But this case I consider is a very clear case. I therefore hold that the Subordinate

Judge was right in concluding that the claim was res judicata. I dismiss the petition with costs.