John Beaumont, Kt., C.J.
1. This is an application to set aside an order made by the First Class Subordinate Judge of Sholapur rejecting an application for leave to sue as a pauper.
2. It is not disputed that the plaintiffs are paupers, but the learned Judge rejected the application on the ground that the plaint disclosed no cause of action. The application was in the correct form under Order XXXIII, Rule 2, Civil Procedure Code, 1908, and under Rule 4 it was open to the Court, if it thought fit, to examine the applicant or his agent regarding the merits of the claim and the property of the applicant, and under Rule 5 the Court is bound to reject an application for permission to sue as a pauper upon the grounds specified, one of them being where his allegations do not show a cause of action, this Court recently had occasion to consider the scheme of Order XXXIII in Burjorji Baria v. Murlidhar Sidhgopal : AIR1943Bom318 , and we pointed out that the application, when dealt with under Rule 4, is an ex parte application. The Court can hear the applicant or his agent, but it is not entitled to have the question argued on merits, and the learned Judge in this case was wrong in hearing the opponents on the question whether the plaint disclosed a cause of action. However, if I thought the learned Judge's decision was right, I should not set it aside on the ground that he heard parties whom he ought not to have heard. But the basis on which he held that the plaint disclosed no cause of action was that it is inconsistent with a decision of a full bench of this Court in Apaji Narhar Kulkarni v. Ramchandra Ravji Kulkarni I.L.R. (1891) 16 Bom. 29. The point of law is this. The plaintiffs are suing for partition against their father and uncle and those claiming under the uncle, and Apaji Narhar Kulkarni v. Ramchandra Ravji Kulkarni (supra) decides that a son cannot claim partition against his own father. I am told that the decision has been dissented from in other High Courts, but, no doubt, it is a binding authority in this Presidency. But it might be reversed by the Privy Council. It seems to me impossible to say that the plaint discloses no cause of action merely because it is inconsistent with a decision of a tribunal which is not a final Court of appeal. Such a ground would not be a ground for striking out the plaint as disclosing no cause of action. It would be wrong to say that a decision ofa single High Court Judge against the plaintiff's claim would justify a Subordinate Judge in saying that the plaint disclosed no cause of action, seeing that the decision of the single Judge might be reversed by a division bench; and the same principle would apply to the decision of a division bench, which might be reversed by a full bench, and similarly to the decision of a full bench which might be reversed by the Privy Council. It is impossible to say that the plaint discloses no cause of action merely because it is inconsistent with a decision not necessarily final.
3. Therefore, the application to sue as a pauper must be allowed. The costs of this application to be paid by the respondents. The costs in the Court below to be costs in the cause.