KRISHNA KAIMAL Vs. PARAMESWARA KAIMAL

JUDGEMENT

(1.) Of the two prayers contained in this application the main one, namely, to permit the petitioner to continue the application (C.M.P. 1871/1121) filed by her predecessor-in-interest for leave to appeal in forma pauperis, cannot obviously be allowed. It is settled law that the right to apply for leave to file a suit, or an appeal as a pauper is a personal right and that it does not survive to the representative of the deceased applicant. The case in 28 TLJ 288 relied upon by the petitioners learned Counsel cannot assist him in that there leave was already granted and death took place after the application was numbered and registered as a suit. The decision itself points out that a different result would have followed had the death happened before the application was registered as a suit. The argument that an appeal is a continuation of the suit and therefore the rule of that decision should be extended to the present case does not commend itself to me as acceptable. The proposition has its own limitations.

(2.) The question whether it is open to the present petitioner to make a fresh application to appeal as a pauper does not arise for consideration in as much as she has not chosen to make one. As pointed out in 28 TLJ 288 and 30 TLJ 483 the formalities prescribed for making an application for leave to sue or appeal as a pauper should all have been satisfied even to treat this application as one such. Mr. Kartha, the learned Counsel for the petitioner however made a request that in case I was not inclined to accept his argument that the right to sue (appeal) as a pauper would survive to the representative of the deceased applicant, his client should be given an opportunity to have the appeal numbered and registered on payment of proper court fees. Though there is no express prayer in that behalf in the petition I do not find any valid objection to accede to the request. If the deceased applicant could have had the privilege in case his application happened to be dismissed I fail to see why it should not be extended to his legal representative in the events that happened. The contention that while it could be done with respect to an application for leave to file a suit in forma pauperis it cannot be done with respect to a similar application to file an appeal cannot in my view be accepted. The fact that two separate documents have to be filed in instituting an appeal in forma pauperis (an application and a memorandum of appeal) can if at all make the latter case a fortiori one.

(3.) The question of setting aside abatement does not arise as there was no suit or appeal pending when the original applicant died. That is the second prayer made in the present petition.