EM. A. Sathar and another vs K.S. Shngappa Gounder

Veeraswami, J.—This petition by plaintiffs 2 and 3 is to revise the order of the Subordinate Judge of Erode allowing an application filed by the fourth defendant to dispauper them and to direct them to pay Court fee. The suit was originally instituted by one Muhammad Hussain, who died pendente lite leaving his widow and two sons. It appears the widow would not come on record as a plaintiff and so his sons on their application were added as legal representatives and as plaintiffs 2 and 3. The Court below found that the petitioners in this Court had means to pay court-fees and on that view and also relying on Arumuga Goundan Vs. Subramania Goundan, allowed the application. It seems to me that the order cannot be supported. The Subordinate Judge has not found that plaintiffs 2 and 3 have been added as such in their own capacity and not as legal representatives of the deceased. In fact, he, at the outset, of his order, mentioned that the two sons were added as the legal representatives of the deceased plaintiff. It may be that under their personal law the legal representatives were entitled to succeed to certain fractional share in the properties of their father along with their mother. But that does not mean that they are any the less the legal representatives because they have come into the suit in the place of the deceased plaintiff. Where of course parties come on record not in the place of the deceased but in view of the death of the plaintiff in their own capacity and continue the suit, it may make a difference whether such parties as plaintiffs have the necessary means to pay the Court fees. In such a case, it may be proper and necessary to allow an application to dispauper under Or. 33 Rule 9 of the C. P. C. But this is not such a case. I do not think therefore that the principle of Arumuga Goundan Vs. Subramania Goundan, is applicable to it. The petition is allowed. No costs.