Kamla Prabhudas vs Satischandra Jayantilal and Others

Chhatpar, J.—This is a revision application to revise an order of the Civil Judge, Senior Division. Rajkot, ordering the applicant to furnish security for Rs. 800/ - as costs under Order 25, Rule 1(3), CPC The applicant had filed a suit against her brother, opponent 2, for recovery of Rs. 7787/ - on a document executed by the latter in her favour, in which he purported to settle Rs. 7000/ - for making provision for her maintenance and attached certain conditions. After filing the suit, the first opponents who are minor sons of opponent 2 acting through their next friend their mother, filed an application for their joinder as Defendants in the suit. They were joined by the learned Civil Judge. Opponent 2, the original Defendant, filed a written statement in which he admitted the claim of the Plaintiff the present applicant. Thereafter the first set of opponents filed an application praying that the Court will be pleased to order the Plaintiff to furnish security under Order 25, Rule 13, Code of Civil Procedure, for their costs. The learned Judge passed a short order in which he observed that this was a fit case for calling upon the Plaintiff to furnish security for payment of costs incurred or likely to be incurred by these Defendants without giving any reasons for making such an order. The applicant has now come in revision to set aside order.

Mr. Mehta, the, learned Advocate for the applicant, has contended that the Civil Judge''s order is perverse and that in any case the amount of costs fixed at Rs. 800/ - is prima facie excessive as the costs would not come to more than about Rs. 250/ -. The learned Advocate has relied upon a ruling of the Bombay High Court in the case of -- Sonabai v. Tribhowandas 32 Bom 602. In this case Davar J. observed:

I have always been most averse to making orders against women for depositing security for the Defendant''s costs when I find that such an order would embarrass them and hamper them in the conduct of their cases. In the cases of poor women such an order amounts to a denial of justice to them, Unless the suit is on the face of it vexatious or is one which I feel is filed merely for the harassment of the Defendant I do not make an order against a woman Plaintiff for security for Defendant''s costs -- when she says she is not in a position to give such security and 1 believe her statement. In a large number of cases where prima facie a woman Plaintiff is entitled to some of the reliefs she claims and the order against her for costs does not appear to be necessary for the reasonable protection of the Defendant, the order is usually refused.

On appeal these principles were upheld. The second case relied upon by the learned advocate is that of -- Namubai v. Daji Govind 35 Bom 421, wherein Robertson J. applied the test whether the suit brought by the lady was bona fide and if it was so, there was no reason to make an order of depositing costs against her. The third case relied upon is -- ''In the goods of Premchand Moonshee'' 21 Cal 832, wherein Sale J. at page 836 observed:

When therefore litigation is harassing and vexatious or where the real Plaintiff is not before the Court, or where, though liable in certain events for the Defendant''s costs, the Plaintiff is a person of no means, in such cases the Court would doubtless exercise this power for the protection of the Defendant.

Lastly he has relied upon a recent ruling in the case of -- Arumugam Chettiar v. K.R.S. Sevugan Chettiar (1950) 5 Bom LR 266 (Mad), where the Madras High Court in revision interfered to set aside an order for costs made against a female Plaintiff. It was held that security for costs could be asked only under exceptional circumstances. The mere fact that a suit is held not to be bona fide at the initial stage could not be ground for asking security for costs from the Plaintiff.

Applying these principles, I can find no justification for making an order for costs in the present case. The learned advocate for the first opponents has contended that the original Defendant who is the second opponent in the present application was colluding with the Plaintiff against the interest of his own sons and his wife. He further argued that the document in any case did not give to the Plaintiff the right to recover the amount mentioned therein, there being a stipulation that if she goes and lives with her husband the money is to revert to the donor. Hence the suit was not maintainable. Now these are questions which will be decided in the suit itself. I do not wish to make any observations as to the correct interpretation and the legal effect of the document. But there is no doubt that the case of the Plaintiff cannot be said to be prima facie not bona fide. The learned Civil Judge has not given any reasons beyond stating that it is a fit case in which he should call upon the Plaintiff to give security. This is not a proper exercise of jurisdiction in view of the decisions referred to above. I, therefore set aside the order of the learned Civil Judge and allow this revision application. The applicant will have her cost from the first opponents, the second opponent will bear his own costs.