Shrimati Savitri Devi vs Dhani Ram

Chet Ram Thakur, J.—This is an application by Savitri Devi through her next friend/natural guardian Shri Babu Ram for permission to sue in forma pauperis under the following circumstances.

The Petitioner, aged about 141/2| years, being a minor and permanently disabled is living under the care and custody of her father and natural guardian Shri Babu Ram in village Kotla, Tehsil Arki, District Solan. She was reading in the 6th class. On the 26th February, 1972, Shri Dhani Ram Respondent without any proper care and caution knowingly fired at the Petitioner, as a result whereof she received several injuries on her face and body and several pellets from the gun shot fired by the Respondent entered her body. Her face has been disfigured and she has become permanently blind from both the eyes. She has thus become permanently invalid and is under constant pains and tortures and for the rest of her life she has to depend on maintenance of others. Besides this, she has lost all chances of marriage and is unable to pursue her studies and requires constant attendance. The Respondent was grossly negligent and callous when he fired the gun shot at the Petitioner. The Respondent know the consequences of his act and hence he is liable for his tortious act. The Petitioner was taken for treatment in the Snowdon Hospital, Simla, and also to Chandigarh and several other places and is even now under treatment. She had to discontinue her studies and on account of the act of the Respondent she had to suffer monetary loss and he is bound to pay the damages and special damages mentioned in para 5 of the petition amounting to Rs. 1,47,000/-.

She owns no movable or immovable property, except wearing apparel which are not even worth Rs. 100 and is unable to pay the court-fee. She being a pauper is entitled to sue in forma pauperis. She, therefore, wants to sue the Respondent for special damages of his grossly negligent act and the damages assessed are as already stated above. Since she does not possess any means to pay the court-fee, hence she has made this application for permission to sue as a pauper and after allowing the same to get it registered and numbered as a plaint of the suit.

Shri Dhani Ram Respondent put in his reply and filed his objections against the application, opposing that the Petitioner was not a pauper and as such she was liable to pay the full court-fee.

The Collector, through Shri B. Sita Ram, Advocate" General, also on a notice being issued filed a reply. It was contended by him that the Petitioner though a minor belongs to a well-to-do joint Hindu family owning a huge landed property in three revenue estates, namely, Kotla, Saryanj and Hariyal, of which the father of the Petitioner, Shri Babu Ram, was the Karta. Only a few days ago joint property of the family was partitioned and as a result of which about 25 bighas of land fell to the share of Shri Babu Ram, who is her natural guardian and next friend. His financial position is sound and has thus got the means to defray all expenses towards court-fee, etc. The application was, therefore, opposed.

On these pleadings the following issue was framed for determination in this application:

Whether the Petitioner is a pauper for the purpose of the suit? (O.P.A.)

The Petitioner examined two witnesses, Durga Dass (A.W. 1) and her father Babu Ram (A.W. 2). No evidence was produced either by the Collector, excepting the production of the revenue papers showing the land owned by Babu Ram, the father of the girl, or by Dhani Ram Respondent.

Findings

I have heard the learned Counsel for the parties. According to the Advocate-General the means of the father, who is the member of the joint Hindu family and the Karta in that capacity, are the means of the girl because she is a member of the joint Hindu family and, therefore, she cannot be said to be a pauper as she is quite capable of paying the requisite court-fee. He has relied on Chandumal and Anr. v. Tejulbai and Ors. AIR 1933 Sind 82, in which it was held:

The rule that the Court has no power to consider the means of the next friend of the minor Applicant is a rule of practice in the English law, but has no application to India.

On the contrary the learned Counsel for the Petitioner has placed reliance on a number of authorities to show that the property of the guardian or the next friend should not be taken to be the property of the minor or the Applicant so as to say that she holds any movable or immovable property whereby she may be capable of making payment of the requisite court-fee.

The first authority is Mt. Amirmai v. Secretary of State and Ors. AIR 1920 Cal 995, where an infant, through her father as next friend, brought a suit in forma pauperis for recovery of damages in respect of serious bodily injuries sustained by her in consequence of the negligence of the Defendants. The application of the minor Plaintiff for permission to sue as a pauper was rejected by the Subordinate Judge on the ground that in order to entitle the Plaintiff to sue in forma pauperis, it was not sufficient to establish that the infant herself was a pauper but it must also be shown that her next friend was a pauper as well. Against this order an appeal was taken to the High Court. The High Court set aside the order on the ground that the order passed was an order under Order 33, Rule 5 of the Civil Procedure Code, whereas the Court ought to have proceeded under Rule 6 of the same Order. The case was, therefore, sent back for disposal according to the above observations.

The second authority relied upon is Venkatanara-sayya, by his father and guardian Lingarayadu v. Achemma ILR 3 Mad. 3, wherein it was held:

In as much as there is in the CPC no rule which prohibits the minor from suing in forma pauperis when the next friend has substantial means, or which declares that he is entitled to sue in that form only when he cannot obtain a next friend possessed of substantial means.

Therefore, from the aforesaid two authorities it would be quite apparent that it is not the means of the next friend or the guardian of the minor which the Court has to take into consideration but it is the means or the property of the Applicant, i.e. the minor which is the very basis for determination whether the Applicant is entitled to sue in forma pauperis. The next friend, as a matter of fact, sues on and for safeguarding the interest of the minor. Therefore, the means or the property of the father or the guardian is of no consequence for the grant or rejection of the application to sue as a pauper under Order 33, Rule 6.

The further authority is Nanibala Dassya v. Jaimini Sundari and Ors. AIR 1923 Cal 656) wherein it was held:

A minor who is not possessed of sufficient means within the definition of pauperism for the purpose of Order 33 is entitled to be allowed to sue in forma pauperis by a next friend although the next friend is not a pauper. In like manner the wealth or other circumstances of the minor''s relation in general are not material.

This authority also supports the view advocated by the Petitioner that although her father possessed some landed property but that in fact is not her property so as to say that she is not a pauper.

Similarly in Munnu v. Katwaru and Anr. 1965 A.L.J. 829, it had been held:

Order XXXIII, CPC has been worded generally and makes no differentiation between Plaintiffs who are major and those who are minors. In the circumstances, the rule applicable to major Plaintiff shall apply to minor Plaintiff and permission to sue as a pauper can be granted to a minor if he does not possess sufficient funds to pay the court fee, even though his next friend may be a rich person and be in a position to pay the court-fee. The English law to the contrary namely, that no leave to sue as pauper can be granted to a minor unless both the minor and the next friend are proved not to possess sufficient funds to pay the court-fee, cannot be made applicable to India.

This authority also supports the Petitioner.

In Mohammad Ashraf (minor) through his mother Mt. Fatima Bibi v. Muhammad Bibi and Ors. AIR 1946 Lah 81 it was held:

If the suit has been instituted on behalf of the minor the court is only concerned with the decision of the question whether the minor is a pauper or not. It is immaterial whether his next friend is fairly rich.

In Nemichand Bhickchand Marwadi Vs. Kevalchand Jasraj Marwadi, it was held:

The rule of English practice which prevents a minor from instituting a suit in forma pauperis, through his next friend, unless he gives proof not only that he himself is a pauper but that the next friend is also a pauper, should not be deduced from the provisions of the CPC under which it is only necessary to show that the minor has no means.

In the light of the numerous authorities cited by the Petitioner that the means of the guardian or next friend or the father are quite immaterial when there is an application by the minor through his or her father or his/her next friend to sue in forma pauperis when she/he is not possessed of any property, there is no escape to hold that this application must be allowed and the authority cited by the learned Advocate-General which is based on the English law is not a good law to be followed.

In the instant case there is undoubtedly evidence to show that the father has got property and he is the Karta of joint Hindu family but it may be stated that the girl is not a member of the joint Hindu family. So long as the father is alive the daughter has no share in the property. Therefore, on that account when there is evidence that she has got no property of her own, excepting a few wearing apparel which are not even of the value of Rs. 100, the issue must be decided in favour of the Petitioner that she is a pauper and her application must be allowed.

In view of the fact that the issue has been decided in favour of the Petitioner the application is also allowed and permission is granted to the Petitioner to sue as a pauper. The petition should now be treated as a plaint and registered as a civil suit. Summons may also be issued to the Defendant.