DURAIPANDIYAN Vs. SOLAIMALAI PILLAI

JUDGEMENT

(1.) The petition (O.P. No 21 of 1933) for leave to sue in forma pauperis was presented by the father of the present respondents. Before final orders could be passed on that petition the person who had presented it died. His sons, the respondents to this petition, then applied to be joined as his legal representatives. They did not want to sue in forma pauperis but sought to go on with the suit which their father had wanted to file, on payment of the necessary court-fees. The Additional Subordinate Judge has ordered that the petitioners are to be added as petitioners 2 to 4 in O.P. No. 21 of 1933, and that that petition is to be registered as a suit on their paying the necessary court-fee. This petition is for the revision of that order.

(2.) The learned advocate for the petitioner relies on Lalit Mohan V/s. Satish Chandra (1906) 33 Cal. 1163, in which it was pointed out that the right to apply to sue as a pauper was obviously a personal right and could not survive in the legal representative who might or might not be a pauper himself. What the legal representative could do was to present a fresh application, if he was himself a pauper, for permission to sue or to institute a suit for the same relief which the deceased had sought to recover. That was a curious case in which an application for leave to sue was struck off in what circumstances it did not appear but apparently because the applicant had died before final orders could be passed on it, and his son upon attaining majority, some fifteen years later, prayed that he might be substituted for his deceased father and that he might proceed with the application. This decision, which was that of a Bench, has been followed by a single Judge of this Court, Srinivasa Iyengar, J., in Subbiah V/s. Sundara Boyamma , but the learned Judge does not appear to have agreed with everything that was said in the course of it. The circumstances of the case dealt with by him were not quite the same as those of the Calcutta case Lalit Mohan V/s. Satish Chundra (1906) 33 Cal. 1163.

(3.) A person who had applied for leave to sue in forma pauperis had died while the application was still pending and his mother, as his legal representative, then applied to be brought on the record in his place and to be allowed to proceed with the application. Srinivasa Ayyangar, J., held that a petition for leave to sue in forma pauperis was admittedly a personal application on a personal ground, and that as the right so to sue was a personal right it could not survive to the legal representative of the deceased applicant. At the same time however the learned Judge pointed out that there was nothing in the mother's petition to the effect that she was prepared to continue the proceedings paying the necessary court-fee in respect of the petition, allowing it to be treated as a plaint, or anything to show that she herself was a pauper. Had there been any offer to pay court-fee he would have been prepared to consider it and have been willing to afford an opportunity, by giving time or otherwise, to continue the proceedings as a suit. It may be said that these remarks were obiter and not necessary to the decision, but they were made with reference to In re Radhakrishna Iyer , a case decided by Jackson, J. In that case a petition had been presented asking for eave to prefer a second appeal and there was also another petition asking that the delay which had occurred in presenting the petition for leave might be excused. Before these petitions could be disposed of the party who had put them in, died and Radhakrishna Iyer, who claimed to be his legal representative, sought to be joined as a party to the petition for excusing the delay. He did not allege that he was himself a pauper. The finding of the learned Judge was that the assignee of the pauper must pay the necessary court-fees or else have himself qua pauper declared entitled to "sue" in forma pauperis before continuing the proceedings. The order was one allowing a month's time for paying court-fees. It is true that the procedure with reference to applying for leave to appeal as a pauper is somewhat different from that for applying for leave to sue as such.