S RAMASWAMIA PILLAI Vs. KRISHNAMMAL

JUDGEMENT

(1.) This is a revision petition against the order of the District Munsif of Tinnevelly on I.A. No. 1267 of 1932 in O.S. No. 517 of 1932 refusing the order of the plaintiff in the suit to furnish security for costs. The plaintiff sued for a sum of Rs. 2,569-6-6 alleged to have been deposited by her husband with the defendant under the pass-book, dated 5 February, 1929. It is alleged that this sum has been gifted to the plaintiff by her husband. The plaintiff was given leave to sue in forma pauperis. The plaint appears to have been filed on 29 October, 1932, and issues were framed on 3 November, 1932, and on that very day the petitioner (defendant) put in an application under Order 25, Rule 1(3), Civil Procedure Code, for furnishing security. It was returned on 4 November, 1932, and re-presented on 5th November, 1932. I append below the B diary with regard to this, which is important. It will be seen that the case was adjourned on several dates and that on 2nd February, 1933, the Court called for the judgment in O.S. No. 11 of 1930 on the file of the Court of the District Munsif of Tuticorin and the judgment and decree in A.S. No. 17 of 1931 filed against that judgment. The petition was then adjourned to 17 February, 1933. On 17 February, 1933, it was adjourned to 8 March, 1933, and on that day it was adjourned with the suit to 7 April, 1933. On 7 April, 1933, the suit was adjourned to 13 June, 1933, and on that day, it was adjourned to 24 June, 1933, as both sides were not ready. On 24 June, 1933, it was adjourned to 15 July, 1933, and on that clay the District Munsif passed the following order; The suit itself is ready for trial, defendant has already incurred the costs. No useful purpose could be served by directing plaintiff to furnish security for costs at this stage. Petition dismissed. No costs.

(2.) It will be seen that the defendant put in this petition for security at the earliest possible opportunity and he has been diligent throughout in his prosecution. But the Court adopted an entirely wrong procedure after 8 March, 1933 in adjourning the petition with the suit and this went on until 15 July, 3.933, the date of the order when it proceeded to dismiss the petition on the ground that the suit itself was ready for trial, that the defendant had already incurred the costs, and that no useful purpose could be served by directing plaintiff to furnish security at that stage. This procedure was really calculated to defeat the whole object of the petition and the reason which the District Munsif gave for dismissing it, if correct, is due to situation which was entirely of the Court's making. In Ram Coomar Coondoo V/s. Chunder Canto Mookerjee (1876) I.L.R. 3 Mad. 66 at 67, their Lordships of the Privy Council observed: It is ordinary practice, if the plaintiff is suing for another, to require security for costs, and to stay the proceedings until it is given.

(3.) Although the District Munsif had sufficient material from which he could have formed a judgment as to the merits of the petition, he did not in fact dispose of the petition on merits at all. He dismissed it, as I observed above, on account of the alleged situation which, if correct, was entirely the Court's own making. There is no absolute rule that a pauper plaintiff cannot be asked to furnish security under Order 25, Rule 1(3). In Seshayyangar V/s. Jainulavadin (1880) I.L.R. 3 Mad. 66 at 67 (a decision of the Bench) it was laid down. If it were shown that the paupers were mere creatures in the hands of persons well able to find security, the order would not be improper.