Ramdhan Puri vs Balkishun Puri

James, J.—This is an application for revision of the order of the Subordinate Judge of Gaya allowing an application to sue in forma pauperies. The plaintiff sued to eject the present possessor of the muth of Budhouli in Gaya and for the appointment of a receiver pendent lite, on the ground that he had a better title to the office of Mahanth than the defendant. The defendant took the objection that the plaint did not disclose a cause of action within the meaning of Order 33, Rule 5(d); but this objection was overruled by the learned Subordinate Judge. In para. 7 of the plaint the plaintiff describes the custom by which succession to the muth is regulated, stating that the reigning Mahanth nominates one of his chelas and that the chela so nominated succeeds him on his death; but that he does not become a legally constituted Mahanth until he has performed the dasnami-bhandara and has obtained the dasnami chadar from other Mahanchs of the surrounding and co-related muths.

It was not asserted that the plaintiff had obtained the dasnama-chadar as a token of election by the neighbouring Mahanth; and the objection was taker on behalf of the defendant that so long as the plaintiff was not the legally constituted Mahanth, he could not claim to eject the defendant from the muth. The learned Subordinate Judge, quoting from Shastri''s work on Hindu Law held that the succession of the trusteeship of a muth could be evidenced either by the nomination of the late Mahanth or by the election by the members of the fraternity; and he considered that the allegation in the plaint that the previous Mahanth had nominated the plaintiff as his successor made out a good cause of action for the plaintiff to maintain his suit.

Mr. P.R. Das on behalf of the petitioner argues that the custom described in para. 7 of the plaint indicates that in order to constitute the plaintiff the legal Mahanth of this muth, it is necessary that his nomination should be confirmed by election by the assembled Mahanths and that so long as the plaintiff has not been so elected he cannot claim to be the legally constituted Mahanth, so that the title by virtue of which he claims to eject the defendant is on the face of it defective. On behalf of the respondent it is argued in the first place that where the trial Court has definitely found that the plaint does disclose a cause of action, it is not open to this Court to interfere with that order in revision, because that is a matter within the discretion of the Subordinate Judge.

In support of this contention, the learned advocate relies upon the decision of Cuming, J., in Sourendra Nath Mitra and Another Vs. Jatindra Nath Ghose and Others, wherein the learned Judge remarked that it was not open to the Court to interfere in that particular case, because the lower Court in coming to a decision had not acted illegally or with material irregularity.

On the other hand Sir Sultan Ahmed has cited decision in Nawab Bahadur of Moorshidabad v. Harish Chandra Acharya (1911) 11 IC 55 wherein the Court interfered in revision with an order giving permission to sue in forma pauperis, on the ground that the Subordinate Judge had not taken into consideration, as he was bound to do, the allegations made in the plaint, finding that if he had done so, the only conclusion which would be possible would be that the plaint disclosed no cause of action.

In the present case it is argued on behalf of the petitioner that the learned Subordinate Judge has acted with material irregularity or illegality in making out a new case for the plaintiff by not confining himself to the custom which is definitely described in the plaint; by travelling outside the plaint to examine what might have been the effect of the other allegations in the plaint if the custom of succession of this muth had been something other than that described in the plaint, and one of the various kinds described in standard works on Hindu Law. It is sufficiently clear that unless the learned Subordinate Judge did confine himself to the case of the plaintiff as set out in the plaint, he did act with material irregularity in determining the question of whether the plaint disclosed a cause of action.

On behalf of the petitioner it is argued that unless the plaintiff shows that he is a legally constituted Mahanth he is bound to fail in his action. In Genda Puri v. Chatar Puri (1886) 9 All 1 the custom proved was similar to that set out in the plaint as governing the succession to the muth; that is to say, the successor was the chela who had been nominated by the late Mahanth and after the death of the Mahanth had been installed or confirmed as Mahanth by the other Gossains of the sect.

The plaintiff in that case failed to prove that he had been confirmed and installed on the gaddi by the local Cossains, which by the custom of the muth was necessary to make a complete title as Mahanth; and their Lordships of the Judicial Committee held that on failing to prove this title the claimant was not entitled to a decree against a person alleging himself to be chela who whether with or without title was in possession. The plaintiff in the present case has definitely stated that until his succession is confirmed by the election of the neighbouring Mahanths by the giving of the dasnami-chadar, the successor to the late Mahanth cannot be a legally constituted Mahanth; and in those circumstances it would appear that he can have no title to eject the defendant, who claims to have been a chela of the late Mahanth however defective his title may be.

The plaintiff''s title is on the face of it so defective, since on the allegations in the plaint he is not the legally constituted Mahanth of the muth, that he cannot hope to succeed in an action for ejectment. The cause of action may be defined as the bundle of facts which would enable the plaintiff to succeed in his suit; and it must be held in this case that the plaintiff has not set out a cause of action in his plaint. The order of the learned Subordinate Judge must therefore be set aside. The application is allowed with costs: hearing fee Rs. 150.