SANTOKSINGH Vs. RADHESHYAM

JUDGEMENT

(1.) This revision application has been referred to the Division Bench in view of the divergence of judicial view on the question as to whether the legal representative of a plaintiff who was granted permission to sue in forma pauperis can continue the suit without payment of Court fee in case he is possessed of sufficient means to pay the required Court-fee.

(2.) One Beant Kuwar widow of Balwant singh had filed an application for permission to sue the defendants in forma pauperis and the relief claimed against the defendants was the declaration of the plaintiff's title to the suit property which consisted of a house and a decree for possession and mesne profits against original defendants Nos.1 to 3. This application was allowed on 2.11.1965 and the application was registered as a regular civil suit on that date. A revision application challenging the order of the trial Court granting permission to the original application to file a suit in forma pauper is came to be rejected. however, on 29.8.1967 Beant Kuwar died and the Present applicants Nos. 1 to 3 applied to the trial Court on 25.11.1967 for being brought on record as legal representatives. This application was allowed on 22.7.1968. After the present applicants were substituted as the legal representatives of deceased Beant Kuwar, an objection was taken on behalf of the defendants that the suit could not be allowed to be continued by the legal representatives unless they paid the requisite Court-fee. It was contended on behalf of the legal representatives before the trial Court that since the plaint had already been registered after the original plaintiff was adjudged as a pauper the legal representatives could continue the suit without being required to pay the Court-fee. The trial Court took the view that the legal representatives could not continue the suit without either proving that they were paupers or paying the requisite Court-fee. The trial Court had relied on the decision in Rao Saheb Manaji Rajuji Kalewar v. Khandoo Baloo. ILR (1912) 36 Bom 279 and Jato Singh v. Malti Kuer, AIR 1947 Pat 474. The trial Court did not accept the view taken in Kalawati Devi v. Chandra Prakash, AIR 1959 All 37. The trial Court accordingly directed the legal representatives to pay the requisite court-fee within 15 days from the date of the order or present an application for permission to continue the suit as paupers within the said period. This order is now challenged by the applicants' legal representatives in this revision application.

(3.) Shri N.M. Dharaskar, appearing on behalf of the applicants, contends that in a case where a person is allowed to sue as a pauper, the suit must be taken to be instituted on the date of the application, and since maintaining a pauper suit was not a personal right of the pauper brought on record and the deceased pauper were two distinct persons in the eye of law, the Court has no jurisdiction to ask the legal representatives to pay the requisite Court-fee after the death of the pauper plaintiff. In short, the contention is that once an application made under Order 33, Rule 8, the suit must be allowed to continue in the same manner even though the legal representatives of the deceased pauper plaintiff were in a position to pay the Court-fee. The argument that after the death of the pauper plaintiff the Court has no power to direct the legal representatives to pay the requisite Court-fees is founded on the decision of the Allahabad High Court in Kalawati Devi's case AIR 1959 All 37 cited supra. The learned counsel for the applicants has also referred to the decision of the Supreme Court in Jugal Kishore v. Dhanno Devi, AIR 1973 SC 2508. We shall refer to these authorities in due course. The decision in Kalawati Devi's case has taken a view contrary to the view of this Court in ILR (1912) 36 Bom 279 (cit. sup.). In that case this Court has observed that the provisions of O.33 of the Code of Civil Procedure negative the idea of anybody but an actual pauper, a real pauper, a man without means, being permitted to maintain or defend a suit in forma pauperis and 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. The Consideration of the question on which admittedly there is a divergence of judicial view requires initially the consideration of the nature of the right or the privilege which is provided under Order 33 of the Code of Civil Procedure. Rule 1 thereof provides that subject to the provisions in Order 33, any suit may be instituted by a pauper, and in the Explanation to Rule 1 it is stated that a person is a 'pauper' when he is not possessed of sufficient meant to enable him to pay the fee prescribed by law for the plaint in such suit, or where no such fee is prescribed, when he is not entitled to property worth one hundred rupees other than his necessary wearing apparel and the subject-matter of the suit. Rule 2 provides for the contents of the application which a person who wants to sue in forma pauperis has to make and it is provided that every application shall contain the particulars required in regard to plaints in suit; a schedule of any movable or immovable properly belonging to the applicant, with the estimated value thereof, shall be annexed thereto; and it shall be signed and verified in the manner prescribe for the signing and verification of pleadings. This application has to be presented by the applicant in person unless he is exempted from appearing in Court, in which case the application could be presented by an authorised agent who is in a position to answer all material questions relating to the application and who can be examined in the same manner as the party represented by him might have been examined if such party had attended in person. Rules 4, 5, 6 and 7 refer to the procedure for the hearing of the application after notice to the opposite party. Under Rule 8 it is provided: