Ananthanarayana Sarma And Ors. vs Krishnamurthy Ayyar And Ors. on 29 October, 1947

Madras High Court
Ananthanarayana Sarma And Ors. vs Krishnamurthy Ayyar And Ors. on 29 October, 1947
Equivalent citations: (1948) 1 MLJ 17
Author: S Rao


Frederick William Gentle, C.J.

1. The relevant facts in this civil revision petition can be stated shortly. On 16th March, 1911, one Sami Ayyar, died possessed of certain properties; he left a widow who died on 20th October, 1931. Upon her death the father of the three petitioners claimed the properties; he made an application under the provisions of Order 33, Civil Procedure Code, for leave to sue as a pauper for the purpose of recovering the properties. On 6th October, 1933, leave was refused and the application was dismissed under Rule 7 of the order. The father died in September, 1934, and his rights, if any, to the properties devolved upon his three sons, the petitioners herein. On 15th October, 1943, they applied to sue in forma pauperis in regard to their alleged claim to the properties. That application was made in respect of the petitioners’ own personal cause of action; it was not made by them in any representative capacity respecting their father’s interest in the properties. On 13th December, 1944, the learned Subordinate Judge of Tanjore dismissed their application holding that, since Rule 15 of Order 33 of the Code would have prevented the father from making a further application for leave to sue as a pauper, the rule also prevented his sons, as his legal representatives, from succeeding in their application. The learned Subordinate Judge, in his judgment, relied upon the decision of a Division Bench of this Court in Kayambu Pillai v. Lakshmi Ammani Ammal (1938) M.L.J. 137.

2. By this civil revision petition the petitioners challenge the correctness of the learned Subordinate Judge’s dismissal of their application. This petition came before Shahabuddin, J., who observed that no direct decision of this or of any other Court on the point had been cited to him and, as the question is one of general importance and bare of authority, he considered it desirable that it should be placed before a Bench.

3. The provisions of Order 33 of the Code enable a person to make an application to the Court to be allowed to sue as a pauper and, if successful, thereby to be relieved from payment of court-fees at institution. Rule 1 defines a ” pauper “, an applicant must bring himself within the definition before leave can be given to him to sue in forma pauperis; in an application for leave, so far as status is con-cerned, the sole matter for consideration is the personal position of the applicant himself. Some additional provisions have been added to Rule 1 by amendment in Madras, which relate to suits by persons acting in a representative character in respect of a pauper’s estate or property; that position and those amendments do not arise in the present instance and can be ignored. So far as material in the present case, the right to sue as a pauper is peculiar to the individual and it arises from his own special status ascertained according to Rule 1. Rule 5 provides for summary rejection of an application to sue in forma pauperis. When there has not been a summary rejection, then, by Rule 7, the Court shall either allow or refuse to allow the applicant to sue as a pauper after holding a formal enquiry. Rule 15 provides that,
An order refusing to allow the applicant to sue as a pauper shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue; but the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such right, provided that he first pays the costs (if any) incurred by the Provincial Government and by the opposite party opposing his application for leave to sue as a pauper.

4. It has to be noticed that the bar is expressed to be upon ” him “, that is, the applicant who has been refused leave to sue as a pauper. The respondents’ contention is that the word ” him ” in the rule, includes, impliedly, the applicant’s legal representative or successor-in-title; and since, in the present instance, the father of the petitioners was refused leave and, consequently, was barred by Rule 15 from making an application, so also are the petitioners because their rights, if any, to the property, devolved upon them from their father and thus they are hit by the same disability as that which affected their parent during his lifetime.

5. The approach to the problem, it seems to me, has not been made from the correct aspect. In his judgment, the learned Subordinate Judge made some observations regarding the petitioner’s position to which I desire to refer. He said:

The question is whether the petitioners, assuming they are now paupers, have a right to apply for leave to sue in forma pauperis, which right their father did not have after the dismissal (of his application in that behalf).

6. Elsewhere he added:

The bar,” viz., under Rule 15 ” must apply not only to him, the father, but to his representatives, because the properties, to recover which the representatives bring their suit, were got by them from the unsuccessful pauper applicant.

7. In my view, those observations reflect a confusion of thought and appreciation of the position. The right to sue must be distinguished from the method by which that 1 he right to the properties and, it would follow, the right to sue for them, their right right can be exercised. Assuming the petitioners inherited from their father to sue arises out of devolution of the property upon them; they did not inherit from him the right to sue as paupers. The latter right can be theirs only if they can bring themselves within the definition of “pauper” in Rule 1 of Order 33. Their right to sue for the property is one which is independent of a right, if they can establish it, to institute their suit in forma pauperis.

8. Although not cited to Shahabuddin, J., there are some relevant decisions in which the position of a “pauper” has been considered and to which reference is now convenient. In Lalit Mohan Mandal v. Satischandra Das (1906) I.L.R. 33 Cal. 1163 it was observed at page 1168 of the report that
The right to make such an application (for leave to sue as a pauper) is obviously a personal right, and cannot survive in the legal representative, who may or may not be a pauper himself.

9. Again, in Manaji Rajuji (Rao Sahib) v. Khandoo Baloo (1906) I.L.R. 33 Cal. 1163 an observation is found, at page 281 of the report, that
The privilege of maintaining a pauper suit is a personal privilege granted to people who have no means of carrying on or continuing litigation, and there seems to be no authority whatever for holding that the representative of a pauper is entitled to continue the suit of his testator or testatrix in forma pauperis, though admittedly he is not a pauper, simply because his testator or testatrix was a pauper.

10. The amendments by way of addition, previously mentioned, which were made to Rule 1 in 1936 by this Court deal with the position and the question of an applicant seeking to sue as a pauper in a representative capacity. Those amendments were not the subject of consideration in the above decisions; and, as already observed, do not arise and are not in point in the present instance. In both the decisions quoted, the right or the privilege of suing or continuing to sue-as a pauper, is personal to the individual, that is to say, it arises in his favour by reason of his own individual status. If the right to make an application to sue in forma pauperis is a personal one which does not pass to a legal representative, then, it must follow, the bar upon it can affect only the individual who ‘personally possesses the right. In Radhakrishna Aiyar, In re A.I.R. 1925 Mad. 819 which was decided before the Madras amendments to Rule 1 were made, Jackson, J., referred to the two decisions, cited above, and held that the representative of a pauper could not continue a suit in forma pauperis if not a pauper himself; there the applicant sought to be allowed to sue in forma pauperis on the ground that he had derived that right from a deceased pauper and it was held he could not do so; in other words, that the right to make an application to be allowed to sue in forma pauperis does not devolve from an individual who may be able to assert that right.

11. By way of emphasising that the bar in Rule 15 relates to the “applicant” alone and not to his legal representative or successor-in-title, learned Counsel for the petitioners referred to Section 2(1) of the Indian Limitation Act which defines ” applicant ” as including any person from or through whom an applicant derives his right to apply. There is not a similar provision in the Civil Procedure Code. Since the definition was necessary in the Limitation Act, so as to include other persons in ” applicant ” in addition to that individual himself, the absence in the Code of a similar provision is an indication that other persons are not included in that word or in the word “him ” in Rule 15.

12. On behalf of the respondents reference was made to Ramakrishna Chetii v. Vuvvati Chengu Aiyar (1914) 27 M.L.J. 494 where, at page 496 of the report, it was observed that:

In the next place a provision in a statute which gives a right to or imposes a liability on a person must be deemed to confer that right and impose that liability on the person’s legal representative and if it confers that right or imposes the liability on that person as the owner of a certain property such right or liability is conferred or imposed on the assignee of such ownership right unless the reason of the rule of law cannot clearly apply to anybody but the original owner of the property or the original obligor.

13. It was contended that those observations are applicable to Rule 15 so that the bar upon the applicant affects also his legal representatives and those who derive title from him. In my view the concluding words of the quotation show that the principle has not universal application without exception. The right to sue as a. pauper is personal to the individual and, from that, it seems to follow that the bar in Rule 15 must be restricted to the individual and does not extend to those who derive title from him…. As already pointed out, the title derived by the petitioners is not that of suing as a pauper but a right to the property in respect of which there is also a right of suit which right is distinct and separate from the method of suing.

14. Counsel for the respondents placed considerable reliance upon the decision in Kayambu Pillai v. Lakshi Ammani Amma (1938) 2 M.LJ. 137 which the learned Subordinate Judge, in the Court below, appeared to consider covers the present matters. It was contended that that decision is conclusive and establishes that the petitioners are affected by the bar in the same way and to the same extent as was their father. There the facts and circumstances, so far as material, were the following : By Order 44, Rule 1 of the Code the provisions of Order 33 applied to a pauper appellant; an appellant was given leave to appeal in forma pauperis; he entered into an agreement with reference to the subject-matter of the appeal by which another person obtained an interest in it; such an agreement, by Order 33, Rule 9, enables the Court to dispauper the pauper litigant; the appellant then died and his executor was brought on record in his place but was not pauperised nor given leave to continue the appeal as a pauper; the respondent to the appeal made two applications : (1) to disallow the executor appellant from continuing the appeal in forma pauperis or to dispauper him; and (2) to direct the executor-appellant to furnish security for the costs of the respondent in that appeal; Horwill, J., granted the applications and a Letters Patent Appeal from his decision was dismissed by a Bench. In the judgment it was observed, at page 140 of the report, that the word “plaintiff” in Rule 9 means “the plaintiff or his representative”. Rule 9 provides that a Court may order the plaintiff to be dispaupered if ” he ” has entered any agreement with reference to the subject-matter of the suit by which another person obtains an interest therein. The “plaintiff” was the deceased pauper appellant who himself had made the disabling agreement and his appeal was sought to be continued by his executor; whilst in the judgment, at page 138, reference is made to dispaupering the executor, since he had not been pauperised he could not be dispaupered. The effect of that decision in my view is that the appeal which had been instituted in forma pauperis by the deceased appellant and which had been continued after the death by his executor, who was not a pauper, was stopped from being prosecuted as a pauper appeal by reason of the conduct of the deceased pauper appellant, which, under Rule 9, occasioned the character of the appeal to be forfeited. The first prayer in the application was to disallow the executor appellant from continuing the appeal in forma pauperis and that is what was ordered, as I understand the judgment in Kayambu Pillai’s case (1938) 2 M.L.J. 137. In my view it is not in point in the present instance.

15. Whilst the petitioners inherited from their father the right to sue for the property, assuming that was the case, that inheritance did not include a right to sue in forma pauperis. Suppose the father, being a pauper, had made no application to sue as such and suppose the petitioners are in financial affluence, in those cir-cumstances, they could not be granted leave to sue in forma pauperis on the ground of their inheritance of the property from a pauper and by virtue of his particular status as such. The corollary, it seems to me, must be that, since they cannot benefit from his status, they are not adversely affected by it, and the bar, which applied to him during his lifetime, does not extend to the petitioners.

16. In my opinion the right to sue in forma pauperis being a personal right of the individual who is given leave to sue as a pauper, and since there is nothing in Rule 15 or in any other part of the Code by which the bar imposed upon the unsuccessful applicant is extended to any one else, such as his legal representative, successor-in-title or others, when an application to sue in forma pauperis is refused, the bar affects the applicant alone and does not extend to any other person. In respect of these observations I am not to be understood as having expressed any opinion regarding the right of a person seeking to sue in forma pauperis in any representative capacity, as provided by the Madras additions to Rule 1 of Order 33, but my obser-vations are confined and restricted to the facts in the present case where the petitioners-applicants wish to enforce their own personal rights to property by way of suit.

17. As part of his argument counsel for the respondents contended that unless the bar in Rule 15 extends to persons other than the applicant who has been refused leave to sue as a pauper, the door is wide open for abuse; an example was given that, in the event of an application to sue in forma pauperis being refused and the bar in Rule 15 then arising against the applicant, he could assign his rights to a pauper who in turn would be entitled to apply under the provisions of Order 33; and counsel urged that the assignee, in such an instance, should be as adversely affected as the assignor regarding the bar in Rule 15. In respect of that argument I desire only to say that if there is any lacuna which might occasion abuse or in-justice then that must be removed either by legislation or by means of the rule making powers conferred by Section 122 of the Code.

18. For the reasons given, in my opinion, the dismissal of the petitioners’ application on the ground that their father’s application had been refused, was wrong. The petition is allowed; the order of the lower Court set aside and the petitioners’ application restored and remanded to the Subordinate Judge of Tanjore to hear and determine upon the merits. The petitioners are entitled to their costs in this revision petition.

Satayanarayana Rao, J.

19. I agree

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes:

<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>

* Copy This Password *

* Type Or Paste Password Here *