Saraswatewwa and Another vs Shivarudrappa Channappa Kinnala and Another

This revision petition is by the legal representative of the original plaintiff in O.S. No. 159 of 1957. When the legal representative in appeal came on record, he submitted that he could prosecute the appeal without paying Court fees since the original plaintiff was permitted to file the suit in forma pauperis. He further submitted that he himself was an indigent person within the meaning of Order 33 Rule 1 of the Civil Procedure Code. The learned Civil Judge who enquired into the matter has held that he would not be an indigent person as contemplated under Order 33, Rule 1 C. P. C. He has further held that the legal representative has no immunity from paying the Court fee. Aggrieved by the said order, the present revision petition is filed.

The points, therefore, that arise for my consideration in this appeal are-

(1) Whether the learned Civil Judge was justified in holding that the legal representative of the original plaintiff who was permitted to sue in forma pauperis, can continue the suit without paying Court fee or without getting himself declared as an indigent person?

(2) Whether the order passed by the learned Civil Judge that the legal representative of the original plaintiff is not an indigent person is legal and proper?

The learned Advocate for the revision petitioner invited my attention to a decision in the case of Smt. Kalawati Devi Vs. Chandra Prakash and Others, , wherein it is laid down that once the plaintiff is allowed to sue in forma pauperis, the legal representative, after the death of the plaintiff, can continue with the suit without paying the Court fee and without getting declared that he was also an indigent person. This ruling, however, is differed by this Court in the case of Hussain v. J. Khaza Hussain Sab (1964) 2 Mys LJ 100. His Lordship Chandrashekhar, J., (as he then was) in that case referred to the decision in the Allahabad case and observed:

"Mr.Muralidhar Rao, learned Counsel for the petitioner, relied on the decision in Smt. Kalawati Devi Vs. Chandra Prakash and Others, where Raghubar Dayal, J., (before whom the case came up on difference of opinion between B. Mukerji and J. K. Tandon, JJ.) has held that a legal representative added as a party to the suit on the death of the plaintiff who had been allowed to sue as a pauper, cannot be called upon to pay the Court fee during the pendency of the suit as a condition precedent for continuing the suit as a legal representative of the deceased plaintiff " ............

"The ratio of the decision of Raghubar Dayal, J., in the said Allahabad case, is that the right to sue as a pauper is not a distinct and separate right from the right to sue for redress of the wrong".

"But the view taken by this Court in Salam B. S. R. V. Motors Private Ltd. v. S. S. Krishna Sastry (AIR 1962 Mys 47) is that the right to sue as a pauper is a personal right distinct and separate from the right to sue for redress of wrong and dies with the person. The same view was taken up by the former High Court of Mysore in Devaraju Naidu v. T. M. Prabhuvaiah (AIR 1953 Mys 57). This is also the view taken in Lalit Mohan Mandal v. Satish Chandra Das (ILR (1906) Cal 1163 ); AIR 1933 334 (Nagpur) and Kavuri Subbiah Vs. Yabursu Bala Tripura Sundara Boyamma,

"I should follow the view already taken by this Court which is also supported by preponderance of authority that the right to sue as a pauper is a personal right which dies with the plaintiff although this view was expressed by Somanath Iyer, J., in considering the question whether the legal representative of the deceased applicant when sued in forma pauperis can continue such an application when the original applicant dies during the pendency of such application."

"Once it is held that the right to sue in forma pauperis is a personal right which dies with the plaintiff who was granted such permission, it must follow that the petitioner who is the legal representative of the deceased plaintiff cannot be permitted to continue the suit unless he pays the Court fee or establishes that he himself is also a pauper".

Thus, it is obvious that the view taken by the Allahabad High Court has not found favour with this Court. It may further be mentioned that in a recent decision of the Bombay High Court, a Division Bench of that Court in the case of Santoksingh and Another Vs. Radheshyam and Another, has dealt with this matter at great length reviewing the case law and has arrived at the same conclusion viz., that the privilege to sue in forma pauperis is a personal privilege given to the person and that that benefit would not extend to the legal representative of the plaintiff if the plaintiff dies during the pendency of the suit. The Bombay High Court has also explained the observation of the Supreme Court made in a different context in Vijay Pratap Singh Vs. Dukh Haran Nath Singh and Another, followed in Jugal Kishore Vs. Dhanno Devi (Dead) by Lrs., . Similar is the view expressed in Sunder Singh Vs. Om Parkash and Others, . That being so, I am satisfied that the learned Civil Judge was justified in holding that the legal representative of the original plaintiff has to either pay the Court fee or prove that he could also enjoy the immunity provided under Order 33 Rule 1 C.P.C.

Adverting to the next point, it is true, as rightly pointed out by the learned counsel for the revision petitioner, that the order does not say that notice was issued in deciding the status of the legal representative in the proceeding, commenced under order 33, to the other side though there is a mention, that the Government did not file any objections. Hence, it is obvious that the procedure followed by the learned Civil Judge is illegal in not issuing notice to the other side who has also a right to contest the proceeding. Hence, the revision petition is partly allowed. The order passed by the learned Civil Judge holding that the legal representative is not a pauper within the meaning of Order 33 C.P.C. is set aside. The learned Civil Judge is now directed to issue notice on the application given by the legal representative for getting the immunity contemplated under Order 33 CPC to the respondents in the appeal as also to the Government and give adequate opportunity to the parties to adduce additional evidence if they so desire. He shall thereafter proceed to dispose of the application given under Order 33 CPC and then proceed to dispose of the appeal in accordance with law.

Intimate the order to the learned Civil Judge, forthwith to enable him to proceed with the matter in question in the light of the directions given above.

No costs.

Revision partly allowed.