KONNAMMAL Vs. ANNADANA JADAYA GOUNDAN

JUDGEMENT

(1.) This is an application by the residents (in the appeal) that appellant should be directed to give security for the (sic) already incurred and the costs (sic) are likely to be incurred. On behalf the appellants the chief fact that had been relied upon in resisting the applied is his poverty. Mr. T.M. Krishnswami Aiyar has argued that in view of the fact that his client is not in a position pay the costs that have been incurred, order should be made directing him to furnish security as such an order would practically have the effect of putting an end to the appeal. Various cases have been cited which have attempted to interpret Order XLI, Rule 10, and the corresponding provision in the Civil Procedure Code of 1882. But I do not think any decision that has been cited to me has laid down any hard and fast rule in regard to the exercise of judicial discretion. Reference has been made to the corresponding provision of the Supreme Court Rules and a good deal of argument has been based upon the wording of that rule. Order LVIII, Rule 15, of the Supreme Court Rules, directs that "the deposit or other security for the costs to be occasioned by an appeal should be made or given as may be directed under special circumstances by the Court of Appeal." It will be seen that the Courts in India have even wider powers than the Court of Appeal in England. No reference to special circumstances is made in Order XLI, Rule 10. The reason for the rule in England has been very clearly stated in the judgment of Lord Justice Lush in Harlock V/s. Ashberry (1882) 19 Ch. D. 84 : 51 L.J. Ch. 96 : 45 L.T. 602 : 30 W.R. 112. He observes: "In the Court of Chancery it was the practice to require security to a certain amount for the costs of an appeal to be given in every case. That was not the practice in the Courts of Common Law; there poverty alone was not considered a sufficient reason for requiring security to be given." Referring to the rule under the Judicature Act he proceeds to say: "This was intended to alter the whole practice both of the Court of Chancery and of the Courts of Common Law, and to leave it in the discretion of the Court whether security should be given under special circumstances. I understand that it has been the practice to hold that poverty or inability to pay the costs of the appeal if it should be unsuccessful is a special circumstance." The argument of Mr. T.M. Krishnaswami Aiyar is that this rule has never been adopted by the Indian Courts and, therefore, poverty should not be held to be a special circumstance which would entitle a respondent to an order under Order XLI, Rule 10. Even under the Judicature Act the English Courts have not invariably said that poverty by itself would be a sufficient ground for an order directing security to be given. In Hood-Barrs V/s. Heriot (1896) 2 Q.B. 375 : 65 L.J.Q.B. 624 : 45 W.R. 17 Lord Esher, M.R. while stating that poverty would be a special circumstance adds: "There is no authority which shows that the Court is in any case obliged as a matter of law to make an order that security shall be given for the costs of an appeal. It is a matter absolutely in the discretion of the Court. Where the liberty of the appellant is in question, or where highly penal consequences will be entailed upon the appellant by the order appealed against, so far from thinking that the Court. is bound in any case to make an order for security of costs, I think, as a general rule, the Court would not do so."

(2.) Cockburn, C.J., takes a similar view in Usil V/s. Brearley (1878) 3 C.P.D. 206 : 47 L.J. Ch. 380 : 38 L.T. 249 : 26 W.R. 371 where an appellant was ordered to give security for the costs of the appeal. The learned Chief Justice makes the following observation: If the Court were of opinion that the plaintiff had any reasonable ground for going on which his action, they should not allow mere...poverty to stand in the way of his appeal. But we are justified in looking at the peculiar circumstances of the case...We may fairly take into consideration the character of the action and the questions involved: and we cannot help noticing that it was a vexatious proceeding on the part of the plaintiff to bring three actions, all for the same cause of complaint at the same time, when one would have been sufficient for his purpose".

(3.) In Ex parte Isaacs, In re Baum (1878) 9 Ch. D. 271 : 47 L.J. Bk. 111 : 38 L.T. 924 : 26 W.R. 890 Brett, L.J., refers to the extreme poverty of the appellant as a special circumstance; and In re: Ivory Hankin V/s. Turner (1879) 10 Ch. D. 372 : 39 L.T. 285 : 27 W.R. 20 Cotton, L.J. observes that the insolvency of an appellant is prima facie a sufficient reason for ordering him to give security though in some cases the Court may not order him to do so.