Vandana Bhargava vs Kapil Bhargava

T.S. Doabia, J.

The short question which needs to he decided in this petition preferred u/s 115 of the Code of Civil Procedure, 1908 is whether a legal representative of a plaintiff who has been allowed to sue as an indigent person can be called upon to pay Court fee merely because such legal representative is in a position to pay the Court fee. The trial has come to the conclusion that such a person i.e. a person seeking to continue a suit which was permitted to be prosecuted under Order XXXII is bound to pay the Court fee. The Learned counsel for the petitioner submits that this is not the intendment of the provisions. The basic argument is that it is the liability of the person who was permitted to sue as indigent person is to be examined. He submits that if this be the position then the heirs cannot be called upon to pay the Court fee.

A perusal of the various decided cases would support the proposition that on the death of the original plaintiff who has been permitted to prosecute a suit as an indigent person his legal representatives can prosecute the litigation if they arc in position to show that they are in a position to pay the Court fee. The preponderance of judicial opinion is in favour of the above proposition. The view of the Allahabad High Court in the case of Smt. Kalawati Devi Vs. Chandra Prakash and Others, is to the effect that once the plaintiff is allowed to sue as an indigent person the legal representative after the death of the plaintiff can continue with the suit without the payment of Court fee and without getting declared that they are indigent persons. The ratio of the decision in Kala Wati''s (supra) is that right to sue as indigent person is not a distinct and separate right form the right to sue for redress of the wrong.

The view taken by other High Courts be taken note of.

In Salam S.R.V. Motors (P) Ltd., v. S.S. Karishna Sastri AIR 1962 Mys. 47 and Devraju Naidu v. T.M. Prabhuvaiah AIR 1953 Mys. 57. The view taken by the Mysor High Court is that the right to sue for redress of wrong is a personal right and dies with a person. Similar view was taken by the above High Court in Hussain v. J. Khaza Hussain 1964 (2) Mys. L.J. 100 and Karnataka High Court in Sarasatewwa v. Shivarudrappa Chinnappa Kinannala AIR 1981 Knt. 8. This is also the view taken in Lalit Mohan v. Satish Chandra Das. ILR. 1906 (Cal). 1163; AIR 1933 334 (Nagpur) and Subbiah v. Bala Tripura Sundara Boyamma AIR 1928 Mad. 278. As a mater of fact in Sarasatewwas case so can AIR 1981 Knt. 8 the view of Bombay High Court and also of the Delhi High Court have been noticed. The view of the Allahabad High Court not find favour with the above High Court. Following observations were made:

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 pauperism is a personal privilege given to the person and that, the benefit would not extend to the legal representatives of plaintiff and if the plaintiff dies during the pendency of the suit. The Bombay High Court has also explained the observations 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., .

In Annapurna Bai v. Balaji Sonar AIR 1946 Nag 320 the Nagpur High Court has taken the view:

That there can be substitution of a legal representative but he must pay the requisite Court fee if he is unable to pay then the legal representative has to apply to the Court for permission to sue as indegent person.

Similar view has been taken in Jato Singh and Another Vs. Mt. Malti Kuer, , Mannaji Rajuji Kalwer v. Khandoo Baloo ILR 1912 Bom. 279.

The view of the Madras High Court reported as Dhulipalla Brahamaramba Vs. Dhulipalla Seetharamayya and Others, is no different. See also Padmanadhan v. Subramoniam AIR 1953 Tra 67 and Lalit Mohan Mandal v. Satish Chanderdas ILR 1906 (Cal.) 33 -1163. See also Sunder Singh v. Om Parkash AIR 1977 Del 142 and Mandam Abdul Sattar Saheb Vs. H. Abdul Hakeem and Others, . The view of Allahabad High Court is the solitary view and is not being adopted. As a matter of fact the view of this Court as reported in Jagatguru Shankaracharya v. Swami Swaroopa Nand. 1978 JLJ 666 is to the same effect.

As such, it cannot be said that the Court below has committed any error in coming to the conclusion that the petitioner who wants to come on the record as legal heir of the original plaintiff is liable to pay Court fee. This calls for no interference. He may, however, show that he is unable to pay Court fee. If such a prayer is made and a case is made out that the petitioner is an indigent person then position would be different.

This revision petition is otherwise, found to be without merit and is dismissed with no order as to costs.