Duraipandiyan vs Solaimalai Pillai and Others

Bardswell, J.—The petition (O.P. No 21 of 1933) for leave to sue in forma pauperis was presented by the father of the present

respondents. Before final orders could be passed on that petition the person who had presented it died. His sons, the respondents to this petition,

then applied to be joined as his legal representatives. They did not want to sue in forma pauperis but sought to go on with the suit which their father

had wanted to file, on payment of the necessary court-fees. The Additional Subordinate Judge has ordered that the petitioners are to be added as

petitioners 2 to 4 in O.P. No. 21 of 1933, and that that petition is to be registered as a suit on their paying the necessary court-fee. This petition is

for the revision of that order.

The learned advocate for the petitioner relies on Lalit Mohan v. Satish Chandra (1906) 33 Cal. 1163, in which it was pointed out that the right

to apply to sue as a pauper was obviously a personal right and could not survive in the legal representative who might or might not be a pauper

himself. What the legal representative could do was to present a fresh application, if he was himself a pauper, for permission to sue or to institute a

suit for the same relief which the deceased had sought to recover. That was a curious case in which an application for leave to sue was struck off in

what circumstances it did not appear but apparently because the applicant had died before final orders could be passed on it, and his son upon

attaining majority, some fifteen years later, prayed that he might be substituted for his deceased father and that he might proceed with the

application. This decision, which was that of a Bench, has been followed by a single Judge of this Court, Srinivasa Iyengar, J., in Kavuri Subbiah

Vs. Yabursu Bala Tripura Sundara Boyamma, , but the learned Judge does not appear to have agreed with everything that was said in the course

of it. The circumstances of the case dealt with by him were not quite the same as those of the Calcutta case Lalit Mohan v. Satish Chundra (1906)

33 Cal. 1163.

A person who had applied for leave to sue in forma pauperis had died while the application was still pending and his mother, as his legal

representative, then applied to be brought on the record in his place and to be allowed to proceed with the application. Srinivasa Ayyangar, J.,

held that a petition for leave to sue in forma pauperis was admittedly a personal application on a personal ground, and that as the right so to sue

was a personal right it could not survive to the legal representative of the deceased applicant. At the same time however the learned Judge pointed

out that there was nothing in the mother''s petition to the effect that she was prepared to continue the proceedings paying the necessary court-fee in

respect of the petition, allowing it to be treated as a plaint, or anything to show that she herself was a pauper. Had there been any offer to pay

court-fee he would have been prepared to consider it and have been willing to afford an opportunity, by giving time or otherwise, to continue the

proceedings as a suit. It may be said that these remarks were obiter and not necessary to the decision, but they were made with reference to In Re:

A.S. Radakrishna Iyer, , a case decided by Jackson, J. In that case a petition had been presented asking for eave to prefer a second appeal and

there was also another petition asking that the delay which had occurred in presenting the petition for leave might be excused. Before these

petitions could be disposed of the party who had put them in, died and Radhakrishna Iyer, who claimed to be his legal representative, sought to be

joined as a party to the petition for excusing the delay. He did not allege that he was himself a pauper. The finding of the learned Judge was that the

assignee of the pauper must pay the necessary court-fees or else have himself qua pauper declared entitled to ""sue"" in forma pauperis before

continuing the proceedings. The order was one allowing a month''s time for paying court-fees. It is true that the procedure with reference to

applying for leave to appeal as a pauper is somewhat different from that for applying for leave to sue as such.

In the case of an appeal, the memorandum of appeal has to be accompanied by an application for leave, whereas in the case of a suit the prayer

for leave is contained in an application which has to be drawn up as a plaint and which itself becomes & plaint upon leave being granted, and the

plaint then dates as if it had been presented at the time when it was put in as an application; but I do not think that this difference in procedure

makes any difference in principle between applications for leave to sue in forma pauperis and applications for leave to appeal as such. There is

plenty of authority for the view that, once leave has been granted to sue as a pauper, the suit can be continued by a legal representative, though

there has been a difference with which I am not now concerned as to whether or no the legal representative if not himself a pauper has to pay court

fee Of course when leave to sue has been given there is definitely a plaint before the Court and a suit has been registered (Order 33, Rule 8) An

application for leave to sue in forma pauperis on the other hand is not a plaint, and the question is whether it can be treated as an inchoate plaint to

which Section 149 can be applied. That section cannot apply, in the case of a legal representative, who is not a pauper, to the application for a

leave to sue as a pauper as such, but if the application is to be regarded not merely in that light but also as an inchoate plaint which will develop into

a plaint on certain conditions being fulfilled, then Order 22, Rule 1, read with Section 141, will apply and there can be a substitution of the legal

representative, for the original would-be-plaintiff. In the case of a pauper suit it has been admitted, the plaintiff has two positions, that of a pauper

which is his personal position, and that of an ordinary plaintiff.

So, too, I take it, an applicant for leave to sue in forma pauperis occupies two positions, one of these being what may be called the general one

of a would-be-plaintiff, and the other the particular one of a person wishing his plaint to be entertained without a court-fee being paid on it. That his

application may be considered as an inchoate or incomplete plaint is indicated by what is the practice of this High Court, though it is not that of all

the High Courts, of allowing court-fee to be paid by the applicant, on his application for leave to sue as a pauper being refused, and dating the filing

of the plaint on such payment from the day on which the application was filed. This practice has been allowed by this Court in a number of

decisions. It has been held, too, by the Privy Council, in Stuart Skinner v. William Orde (1878) 2 All. 241, that when a person who had at first

applied for leave to sue in forma pauperis sought for permission before the enquiry had been made into his pauperism, to pay the necessary court-

fee, and it was found that he had acted all through in good faith, his petition could, on such payment, be allowed and his suit should be taken as

instituted from the date when he filed his pauper petition.

As pointed out in that decision the defendant, so far from being a sufferer by the change, is benefited as both parties will go on with the litigation

on equal terms. It is also remarked that though the analogy is not perfect what has happened is not at all unlike that which so commonly happens in

Indian Courts that a wrong stamp is put upon the plaint originally and the proper stamp is afterwards affixed. It is to be observed that in the Privy

Council case, as in this case, permission to pay the court-fee was asked for before the question of pauperism had been decided. The difference

between the two cases is that in the one it was the original applicant who sought permission to pay the court-fee, while in the other it was his legal

representatives that did so. But I take it that this makes no difference in principle. The right to pay court-fee is not a personal right and the point is

that an application to sue as a pauper can be treated as an insufficiently stamped plaint.

I find then that the learned Subordinate Judge has passed a correct order in allowing the respondents here to be joined as legal representatives

of the deceased applicant and to pay the court-fee upon which payment the application is to be filed as a suit. This revision petition is therefore

dismissed with costs.