K. Balakumar vs M.S. Jayaprakash and Others

Rengasamy, J.—This Appeal is against the order of the 10th Assistant Judge, City Civil Court, Madras, in O.P. No. 192 of 1975,

dismissing the petition seeking permission to file the suit as an indigent person.

The appellant''s mother by name Narasammal, filed the petition seeking permission to file the suit as an indigent person. The learned 10th

Assistant Judge, City Civil Court, dismissed the petition, against which a revision was filed in this Court and this Court, allowing the revision,

remanded the matter for fresh consideration. During the pendency of this petition for enquiry, the appellant''s mother Narasammal died and the

appellant herein got impleaded himself as the legal heir of the said Narasammal. He continued this petition under Order 33 Rule 1 Code of Civil

Pocedure as legal heir of his mother seeking permission to file the suit without payment of the Court fee. The 10th Assistant Judge, City Civil

Court, has dismissed the petition holding that as this petition was filed by the appellant''s mother to permit her to file the suit as an indigent person,

after her death, the relif sought for by her, which is personal, came to an end, that the appellant herein did not file a separate petition seeking

permission to file the suit as an indigent person or amend the petition to describe himself as an indigent person and therefore, this petition was not

maintainable.

The learned counsel appearing for the Appellant Mr. Raghavachari, contended that when the Original Petition was filed with a prayer to permit

the petitioner Narasammal as an indigent person, the suit also is deemed to have been instituted on that day, that though Narasammal died, her

legal heir is entitled to continue the suit, that, therefore, no separate petition is required under Order 33 Rule 1 CPC seeking permission by the legal

heir to permit him to file the suit as an indigent person as the suit was already institued by the original plaintiff Narasammal, that as the Court has no

find out whether Narasammal, the original plaintiff, was an indigent person at the time of filing of the suit, there is no necessity to file a petition by

this appellant, who is the legal representative of the deceased, or amend the plaint describing the appellant herein as an indigent person and

therefore the order of the Court below has to be set aside.

The learned counsel for the appellant cited a decision of the Apex Court in Vijay Pratap Singh Vs. Dukh Haran Nath Singh and Another,

wherein the Supreme Court has held that the application to sue in forma pauperis by the applicant is not personal to himself. Even though such is

the observation of the Supreme Court, it has not laid down the rule that the legal heir of the deceasd applicant is entitled to continue the same

application without a prayer for permission to treat him as an indigent person. In the case before the Supreme Court, a minor filed the petition

seeking permission to file the suit as an indigent person but the Court found that there was no cause of action for the suit and dismissed the petition.

However, his father who was one of the defendants, filed a petition to transpose himself as a petitioner and the Supreme Court has held that in the

event of his being transposed as a petitioner, he has to seek leave of the Court to sue in forma pauperis. Therefore, in that case, the person who

wanted to be transposed, had to establish his indigency to continue the suit. Another decision relied upon by the learned counsel for the appellant

namely Dhulipalla Brahamaramba Vs. Dhulipalla Seetharamayya and Others, also is not a decision on the point. In that case, one Dhulipala

Venkata Subba Rao and his minor brothers filed the application seeking permission to sue in forma pauperis and before the petition came up for

enquiry, the petitioner Dhulipala Venkata Subba Rao died and his mother got impleaded as a legal heir of the said Venkata Subba Rao. In that

case, the mother expressed her willingness to pay court fee. The learned Judges have referred to series of decisions in this case and in those cases,

the persons who were impleaded as the legal representatives, were directed to pay court fee. Even though in that Bench decision Venkata Subba

Rao sought for permission to sue in forma pauperis, his mother, who continued the petition subsequently, could have contended that she was not

liable to pay court fee as her son, who filed the petition, was an indigent person if the law is to be taken that the legal heir need not prove his

indigency. On the other hand, the legal heir offered to pay the court fee in that case because she was not an indigent person though her son claimed

to be an indigent person, and sought permission to exempt him from the payment of the court fee. The observation in Brahamaramba v.

Seetharamayya (referred supra):

...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

From this expression, it is clear that the person, who had impleaded in a pauper application, is really a substitute of the plaintiff, but not a substitute

for the applicant claiming exemption from payment of the cout fee, to continue the prayer of the original applicant to permit him or her to sue as an

indigent person. Therefore, when a new plaintiff is substituted, unless he is exempted from payment of the court fee, under Order 33 Rule 1 Code

of Civil Procedure, he cannot continue the suit.

The scope of Order 33 C.P.C. is to help the person, who is really unable to pay the court fee in respect of the relief sought for in the plaint. If

the person, who filled the application, died during the pendency of the petition and the legal representative is added, the relief is sought for only by

the newly added party. Therefore, if the court fee is not paid for that relief, the newly added person in the capacity as the legal heir of the orginal

applicant, should establish that he is an indigent person. Otherwise, the suit cannot be taken on file. In this case, the appellant herein, who got

impleaded as legal heir of his mother Narasammal, is substituted for the deceased person in her capacity as a plaintiff and therefore, as he wants to

continue the suit as plaintiff, he has to pay either the Court fee or to prove that he is an indigent person. It is not necessary that he should file a

separate petition under Order 33 Rule 1 CPC for permission to sue as an indigent. But he is bound to amend the petition in which he got

impleaded describing him as an indigent person if he prays for the exemption of the payment of court fee. As this was not done by the appellant,

the lower Court has dismissed the petition. Even though I find that there is no error in the order of the court below, I feel that an opportunity must

be given to the appellant to prove his indigency. Hence, it is proper to remand this matter to the court below for consideration as to the indigency

of the appellant.

In the result, the order of the court below is set aside and the matter is remanded back to the lower court. The appellant herein, if he seeks

exemption from payment of court fee, he shall be permitted to file petition for amendment of the petition to describe him as an indigent person and

after such amendment, he may be given opportunity to adduce evidence to prove his indigency. The appeal is ordered accordingly. No costs.