PADMANABHAN PILLAI Vs. SUNDARA SUBRAMONIAM PILLAI

JUDGEMENT

(1.) THE only question that arises for determination in this case is whether an application for permission to sue in forma pauperis abates with the death of the applicant or whether it can be continued after his death. If the right to sue does not survive, it is clear that nobody can continue the action. 'Actio personalis moritur cum persona' (A personal right of action dies with the person). If the right to sue does survive, if what the deceased had filed was a suit, it can be continued by his legal representative. The question is whether an application for permission to sue in forma pauperis is or can be regarded as a suit which can be continued by the legal representative of the applicant. Order XXXIII Rule 1 provides that "any suit may be instituted by a pauper" and under Rule 2. every application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits... and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings.

(2.) THE presentation of an application would thus amount to the institution of a suit. Order IV Rule 1 states that Every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf. Therefore on the presentation of the application for permission to sue in forma pauperis, a plaint is presented to the Court. The Court -fees Act prescribes the requisite fee for a plaint without which it will not be received. A plaint presented by a pauper is an exception. An application for permission to sue as a pauper must bear Court -fee as on an application. If permission be granted, then the plaint presented as a part of, or along with the application, is numbered as a suit. If it be not granted, then there is no suit before Court to be numbered as such. The pauperism of an applicant is personal to him and the application for permission cannot be continued after his death. The question is whether the plaint presented by the applicant can be prosecuted after his death. The applicant may have filed the suit to enforce a cause of action possessed by him individually which is sought to be enforced for his own benefit or the cause of action sought to be enforced may be one for the benefit of himself and other persons, for instance members of a family or co -owners. In the first class of cases the legal representatives can continue the suit if the right to sue survives and in the latter class of cases, the other members of the family or co -owners as the case may be. The persons seeking to continue may or may not be themselves paupers. If they are paupers, can they present a fresh application to continue the plaint previously presented and prosecute the suit in forma pauperis? If they are not paupers can they seek to continue on payment of Court -fee? The first of these questions does not arise in this case. The question that arises is the second.

(3.) THERE is a conflict of judicial opinion as to whether, when an application to sue in forma pauperis is rejected, it is competent to a Court to grant time to the applicant to pay the requisite Court -fee at the time of rejecting it. Rule 7 of Order XXXIII of the Code of Civil Procedure (Indian) does not in terms contemplate the grant of liberty to the Petitioner to pay Court fee or the grant of any time therefor. Based on the absence of a provision in that behalf, one view is that no liberty to pay Court -fee can be granted nor can time be given for such payment. Another view taken is that, though there is no provision, as there is no express prohibition, it is competent for the Court to permit the applicant to pay Court -fee and to grant him time therefor. The application is regarded as a plaint on which some Court -fee is paid and what the applicant is permitted to do is to make good the deficit Court -fee which is permitted by the law. In the Code of Civil Procedure of Travancore and Cochin, there is an express provision made in Rule 7 of Order XXXIII authorising the Court to permit the Petitioner to pay Court -fee and to grant him such time as it thinks fit for payment. As this case has to be determined under the Travancore Code, it is unnecessary to review authorities or resolve the conflict among the High Courts in India and among Judges of the same High Court. The only question that falls to be decided is whether the application presented by the deceased can be permitted to be continued as a plaint by his legal representative on payment of Court -fee which is the prayer made by the Respondent and allowed by the Court below. The provision contained in the Travancore Code for the grant of time to the applicant to pay Court -fee indicates the leaning of the Legislature in this matter. On a very strict view, if the application for permission is dismissed, there the matter ends, but when permission can be given to pay Court -fee and if Court -fee is paid, it would be as though Court -fee had been paid along with the presentation of the plaint. The Plaintiff would have the benefit of the institution of the suit on the date the application for permission to sue in forma pauperis was presented. This would be a great advantage to him as it might be that the claim would have got barred by limitation meanwhile. Even under the Indian Code, an application for permission to sue in forma pauperis has been considered sufficient to justify the issue of an injunction -'Dhaneshwar Nath v. Ghanshyam Dhar', AIR 1940 AH 185, or the appointment of a receiver -'Bai Sakri v. Bai Dhani', AIR 1948 Bom 139. These interlocutory orders are passed on the basis that a suit has been instituted on the presentation of the application to sue to forma pauperis. We consider that this is the proper view to take of the matter. Reference may be made to a decision of the Privy Council in -'Stuart Skinner alias Nawab v. William Orde', 2 All 241 (P.C.) which affords support to this view.