1. It appears be me in this case that the learned Judge has misunderstood the meaning of the words in clause (d) of rule 5 of Order 33 of the CPC, “where his allegations do not show a cause of action.” He has rejected the application to sue as a pauper not on the ground that the plaint does not disclose a cause of action, but on the ground that the defendant had a good defence to the suit, namely that the matter in suit between the parties was merely res judicata.
2. It was not open to the learned Judge to dismiss the application on this ground and in doing so he has exercised a jurisdiction not vested in him by law or has at any rate acted with material irregularity in the exercise of his jurisdiction.
3. I accordingly allow this application, set aside the order of the court below and direct that court to enquire into the application on the merits. Costs will abide the result.
4. Application allowed.