THANKAM Vs. GOPALAKRISHNAN THAMPI

JUDGEMENT

(1.) A question of some importance in pauper suits arises for consideration in this Civil Revision Petition. The question is whether one of the persons entitled to sue in a representative capacity can sue in forma pauperis it some other entitled to sue under the same cause of action is possessed of means and is not a pauper. The petitioner in Pauper O. P. No. 23 of 1974 on the file of the Subordinate Judge, Trichur is the petitioner in this Civil Revision Petition. The petitioner filed a suit in forma pauperis claiming damages to the tune of Rs. 40500/- for the death of her son Mohanan who succumbed to the injuries sustained in an accident in which a lorry belonging to the 1st respondent was involved. The claim in the suit was made by the petitioner on her behalf and on behalf of her husband Kunhunny who was made 3rd respondent in the pauper application, It is admitted that the petitioner's husband has sufficient means to pay court fee. The court below dismissed the pauper application saying:

(2.) Shri N. K. Sreedharan, learned counsel for the petitioner, contends that the court below went wrong in dismissing the pauper application filed by the petitioner on the ground that the petitioner's husband who is also entitled to make the claim under the Fatal Accidents Act, 1855 is not a pauper. According to the learned counsel, as long as the petitioner is not possessed of sufficient means and is not in a position to pay court fee, the pauper application has to be allowed and the petitioner has to be permitted to sue in forma pauperis. Learned counsel points out that the petitioner cannot be prevented to sue simply because the other claimant, the petitioner's husband, refuses to sue. Learned counsel refers to Explanation II to O.33 R.1, Code of Civil Procedure, 1908 which reads:

(3.) The plaintiff is suing in a representative capacity as the suit is one under S.1A of the Fatal Accidents Act, 1855 and since the plaintiff's husband' the 3rd respondent in the pauper application, is alive. If the 3rd respondent is not willing to sue, that cannot prevent the petitioner from filing the suit. Then the question is whether, it the petitioner is a pauper and the 3rd respondent is not a pauper, the petitioner can sue in forma pauperis. Explanation It to O.33 R.1 of the Code of Civil Procedure, 1908 which governs the matter insists that 'the question of pauperism shall be determined with reference to the means possessed by him in such capacity'. In this case, the petitioner cannot have any right whatsoever in the assets of the 3rd respondent as long as he is alive. So, even if the 3rd respondent is possessed of means, the petitioner can sue in forma pauperis because there are no assets possessed by the 3rd respondent in which the petitioner has got a right and the petitioner is not possessed of sufficient means. The decision in Krishna Pillai v. Vasudevan (1964 KLT 149) is not applicable to the facts of the case as in that case admittedly the plaintiff therein and the other members of the tarwad had interests in the assets of the tarwad. In Vellingiri Naicken v. Sree Patteswaraswami Devasthanam (AIR 1949 Madras 714) what was sought to be enforced was a right of the public of a locality and no personal claim as the one involved in this case was there. In the above case, the plaintiffs filed the suit as representatives of the public of the locality to enforce a public right. So, the above decision cannot also apply to the facts of this case.