Dhulipalla Brahamaramba vs Dhulipalla Seetharamayya and Others

Alfred Henry Lionel Leach, C.J.—One Dhulipala Venkata Subba Rao and his two minor brothers, Sreedhara Rao and Butchaiya, filed an

application in the Court of the Subordinate Judge, Tenali, asking to be allowed to sue in forma pauperis for a decree for the partition of Immovable

property. The application complied with all the requirements of the CPC with regard to a plaint. The document was in form and substance a plaint,

coupled with a prayer to be allowed to sue without payment of the Court-fee. Before the Court had time to inquire into the alleged pauperism of

the petitioner, Dhulipala Venkata Subba Rao died. Thereupon, his mother, the petitioner now before us, applied to be brought on the record as his

legal representative and to be allowed to continue the suit in his place.... She signified her willingness to pay the Court-fee. The Subordinate Judge

relying on the judgment of Horwill, J., in Gade Anasuyamma being minor by next friend Batchu Nagireddi Vs. Gade Subbareddi, dismissed the

application. The petitioner then asked this Court to set aside the order of the Subordinate Judge in the exercise of its revisional powers. In the first

instance the matter came before Happell, J., who referred it to a Bench for decision. In his order of reference the learned Judge pointed out that

the decision of Horwill, J., was in conflict with the judgment of Bardswell, J., in Duraipandiya v. Solaimalai Pillai (1934) 67 M.L.J. 332 : ILR 58

Mad. 169.

It follows from what we have said that the question involved is whether the legal representative of a person who dies during the pendency of an

application to be allowed to sue in forma pauperis can be brought on the record and allowed to prosecute the suit on payment of the requisite

Court-fee. The decision of the question requires the consideration, not only of the two cases referred to, but of the judgment of the Privy Council in

(1880) ILR 2 784 (Privy Council) and of other authorities. The judgment of the Privy Council in (1880) ILR 2 784 (Privy Council) has a very

important bearing on the question under discussion, but its effect has not always been properly understood. There, a person applied for leave to

sue as a pauper, but pending the inquiry into his alleged pauperism he obtained funds which enabled him to pay the Court-fee. He was allowed by

the Court to pay the Court fee, whereupon his petition was numbered and registered as a plaint. The Judicial Committee held that in those

circumstances the suit should be deemed to have been instituted from the date when the petition to sue in forma pauperis was filed and that

limitation ran against him only upto that time. The CPC of 1859 was then in force. After referring to its provisions with regard to applications to sue

informa pauperis Sir Montague E. Smith, in delivering the judgment of the Board, said:

Therefore it ""(the petition)"" contains in itself all the particulars the statute requires in a plaint, and, plus these, a prayer that the plaintiff may be

allowed to sue in forma pauperis.

Later in the judgment Sir Montague E. Smith said:

Although the analogy is not perfect, what has happened is not at all unlike that which so commonly happens in practice in the Indian Courts, that a

wrong stamp is put upon the plaint originally, and the proper stamp is afterwards affixed. The plaint is not converted into a plaint from that time

only, but remains with its original date on the file of the Court, and becomes free from the objection of an improper stamp when the correct stamp

has been placed upon it.

There is no essential difference between an application to sue in forma pauperis under the present Code and an application under the Code of

1859.

It follows from what was said in the judgment in (1880) ILR 2 784 (Privy Council) that such an application is in fact a plaint coupled with a

prayer to be allowed to sue without payment of the required Court-fee. A plaint which does not bear the Court-fee prescribed by law, in whole or

in part, can by reason of Section 149 of the present CPC be stamped with the permission of the Court at any stage and when this is done the

document has the same force and effect as if the fee had been paid in the first instance. There were no such provisions in the earlier Codes.

Order XXXIII, Rule 15 of the Code now in force provides that an order refusing to allow the applicant to sue as a pauper shall be a bar to a

subsequent application of the same nature in respect of the same right to sue, but the applicant shall be at liberty to institute a suit in the ordinary

manner in respect of the right claimed, provided he pays the costs, if any, incurred by the Provincial Government and by the opposite party

opposing the application for leave to sue as a pauper. It has always been the practice of this Court, when an application to sue in forma pauperis

has been refused, to allow the applicant to pay the requisite Court-fee within a stipulated period and on payment of the Court-fee within the time

allowed to regard the suit as having been instituted on the date on which the application for leave to sue in forma pauperis was presented.

The nature of an application to sue in forma pauperis has been discussed on numerous occasions in Indian High Courts, since the present Code

of Civil Prccedure came into force. In Balaguru JVaidu v. Muthuratnam Iyer (1923) 46 M.L.J. 254 this Court (Krishnan, J.) held that an

application to sue as a pauper is a combination of a plaint and an application to excuse the payment of the Court-fee on it. The Calcutta High

Court gave a pronouncement to the same effect in Jagadeeshwaree Debee v. Tinkarhi Bibi ILR (1935) Cal. 711 as did the Patna High Court in

Bank of Bihar; Ltd. v. Sri Thakur Ramchandarji Maharaj ILR (1929) Pat. 439.

On the other hand, two of the Judges of a Full Bench of the Allahabad High Court held in Chunna Mal v. Bhagwant Kishore ILR 1937 All. 22

that an application to sue as a pauper was not a composite document, although the third Judge was of the opinion that it was. There an application

for leave to sue as a pauper was refused and an application for a review of the order met with a similar fate, but the Court of first instance allowed

time to the petitioner to deposit the requisite Court-fee. In revision the High Court by a majority held that when an application for leave to sue as a

pauper is rejected under Order XXXIII, Rule 7(3), the Court cannot u/s 149 of the Code allow the applicant to pay the requisite Court-fee and

treat the application as a plaint. The majority opinion was expressed by Sulaiman, C.J., and Bennett, J. The dissentient Judge was Allsopp,J. The

learned Chief Justice and Bennett, J., held, however, that when the rejection was under Order XXXIII, Rule 5, time to pay the requisite Court-fee

could be allowed. Sulaiman, C.J., and Bennett, J., considered that the judgment of the Privy Council in (1880) ILR 2 784 (Privy Council) did not

apply but we can see no real ground for distinction. We consider that in (1880) ILR 2 784 (Privy Council) the Privy Council unquestionably held

that an application to sue in forma pauperis is a composite document, a plaint coupled with a prayer to be allowed to sue without payment of

Court-fee.

There are two decisions, one of this Court and one of the Bombay High Court in which interlocutory applications have been granted as in a suit

during the pendency of an application to sue in forma pauperis. In Chidambaram represented by his maternal grandfather Natesa Mudaliar as his

next friend Vs. Nataraja Mudaliar and Others, Gentle, J., held that on the presentation of a petition for leave to sue in forma pauperis the suit

should be deemed to have been instituted on that date and consequently the application for a Commissioner to take an inventory of moveable

property was properly made within the meaning of Order XXXIX, Rule 7 of the Code of Civil Procedure. The application was filed before there

had been any inquiry into the pauperism of the applicant. In Totaram Ichharam v. Dattu Mangu ILR 1943 Bom. 138 Beaumont, C.J., and

Wassoodew, J., held that an application for the appointment of a commissioner to take an inventory of property could be filed along with a petition

for leave to sue in forma pauperis and be dealt with by the Court under Order XXXIX, Rule 7 of the Code. The learned Chief Justice said that he

entertained no doubt that the plaint, whether it consisted of the original plaint, or of the petition deemed to be a plaint, took effect from the date

when the plaint and the petition were presented.

We are concerned in the present case with the position when the petitioner dies during the pendency of an application for leave to sue as a

pauper. Our attention has been drawn to five reported cases where this has been the position. Three of them are decisions of this Court. In

Subbiah v. Sundara Boyamma (1927) 54 M.L.J. 582 : ILR 51 Mad. 697 Srinivasa Aiyangar, J., held that where a petitioner dies during the

pendency of his application for leave to sue in forma pauperis his legal representative is not entitled to continue the further prosecution of the

petition. The basis of this decision was that the application to sue in forma pauperis is purely a personal relief and therefore the legal representative

cannot stand in the applicant''s shoes. The learned Judge was, however, careful to indicate that there was no objection to the legal representative

being brought on the record if he wished to continue the proceedings as a suit by the payment of the requisite Court-fee. In Duraipandiyan v.

Solaimalai Pillai (1934) 67 M.L.J. 332 : ILR 58 Mad. 169 the sons of a deceased petitioner applied to be joined as his legal representatives and

sought to proceed with the suit on payment of the requisite of the Court-fee. It was held by Bardswell, J., that this was permissible. The learned

Judge''s opinion coincided with that expressed by Srinivasa Aiyangar, J. This is the second of the two cases mentioned by Happell, J., in his order

referring the present petition to a Bench.

We now come to the first case referred to in the order of reference, namely, Gade Anasuyamma being minor by next friend Batchu Nagireddi

Vs. Gade Subbareddi, . There Horwill, J, held that the right of a legal representative was merely to file a fresh application to sue in forma pauperis

or institute a separate suit. No reference was made in the judgment to the decision in Durai-pandiyan v. Solaimalai Pillai (1934) 67 M.L.J. 332 :

ILR 58 Mad. 169. Horwill, J , considered that on the death of the person applying for leave to sue as a pauper his application abates, and that it

would not be possible for the Court to overlook the break and to regard the plaint as having been presented by the legal representative on the day

when the application was originally filed. This decision is not only in conflict with the judgments in Suhbiah v. Sundara Boyamma (1927) 54 M.L.J.

582 : ILR 51 Mad. 697 and Duraipandiyan v. Solaimalai Pittai (1934) 67 M.L.J. 332 : ILR 58 Mad. 169 but it ignores the fact that an application

for leave to sue in forma pauperis is a plaint and that the legal representative of the applicant is entitled to enforce all the rights which he possesses.

Moreover, the learned Judge also ignored the provisions of Section 149 of the Code of Civil Procedure. He considered that the decision in

Subbiah v. Sundara Boyamma (1934) 67 M.L.J. 332 : ILR 58 Mad. 169 supported his view but here he overlooked the fact that Srinivasa

Aiyangar, J., expressed the opinion that the legal representative could continue the suit on payment of the requisite Court-fee.

The other two cases which have reference to the position when the petitioner dies are Mst. Bibi Marim v. Surajmal ILR (1936) Pat. 738 and

Annapurnabai v. Balaji Maroti AIR 1946 Nag. 320. In the former case a Division Bench of the Patna High Court held that the legal representative

of a deceased petitioner could continue the proceedings as a suit on payment of the requiste Court-fee. In Annapurna Bai v. Balaji Maroti AIR

1946 Nag. 320 the Nagpur High Court expressed the same opinion and said that the legal representative was in reality substituted for the

deceased party in his capacity as the plaintiff and not as one suing for exemption from payment of Court-fee.

As the application for leave to sue in forma pauperis embodied a plaint, we hold that the petitioner is entitled in law to be brought on record as

the legal representative of Dhulipala Venkata Subba Rao and to continue the suit on payment of the requisite Court-fee. We have shown that there

is ample authority to support this decision. We also hold that limitation must be deemed to have stopped on the date on which Dhulipala Venkata

SubbaRao filed his application for leave to sue in forma pauperis. Here Section 149 of the CPC applies.

The application for revision is allowed and the case remanded to the Subordinate Judge to decide whether the petitioner is in fact the legal

representative of Dhulipala Venkata Subba Rao. If she is, he must substitute her name for his and allow her to continue the suit on payment of the

Court-fee payable in respect of his share. It may be added that the minors Sreedhara Rao and Butchaiya have already been permitted to pay the

Court-fee on their shares and continue the suit in the ordinary way.

The petitioner is entitled to her costs.