KOTI VISWANATHAM Vs. PANDIRI SATYANANDAM

JUDGEMENT

(1.) This is a Letters Patent Appeal from the order of Burn, J., refusing leave to the appellant to file his appeal in forma pauperis. The facts, so far as they are relevant, may be shortly stated. The suit related to certain logs of timber, which the plaintiff claimed by virtue of an agreement with the first set of defendants. The fifth defendant was the rival claimant, who alleged that the logs belonged to him and had been transferred to the sixth defendant. The lower Court negatived the claim of the fifth and sixth defendants and decreed the plaintiff's suit. The applicant before Burn, J., was the fifth defendant, who applied for leave to file the appeal in forma pauperis. Pending the action, the logs were sold and the sale proceeds were brought into Court and the fifth defendant, reciting that some monies were due from him to the sixth, transferred to him such interest as he possessed in the proceeds. The point to note is that the transfer was not made with reference to any intended appeal,, having been effected, as stated above, even before the judgment was delivered by the Court below.

(2.) The provision of law which governs the question is Order 33, Rule 5, Civil Procedure Code (the provisions of Order 33, being applicable by virtue of Order 44, Rule 1 to appeals also) which runs thus: The Court shall reject an application for permission to sue as a pauper, (e) Where he has entered into any agreement with reference to the subject-matter of the proposed suit under which any other person has obtained an interest in such subject-matter.

(3.) It is contended for the appellant that the agreement referred to here must be of a champertous character, the idea being that the provision is aimed against bargains tending to promote litigation, such bargains being immoral in a legal sense. First, it must be pointed out that the English Law in regard to champerty and maintenance does not apply in India, for, it has been laid down that an agreement being champertous is not of itself sufficient to render it void, but must be shown, in addition, to be contrary to public policy. Further, it is to prevent payment of court-fee being evaded, that this provision has been enacted, and it matters little therefore with what purpose the agreement has been entered into; whether it is an honest or bona fide one or of an improper character, seems an irrelevant factor, quite outside the scope of the enquiry. There is no need to read into the section the suggested limitation, which does not find a place there. The principle underlying the provision is that a person ought not to be allowed to sue in forma pauperis after transferring to a third party his interest in the property involved in the suit, no matter for what reason the transfer has been made. In other words, as was observed in Hanifa Bai V/s. Haji Siddick Bui Meanji Sait (1906) 17 M.L.J. 447 : I.L.R. 30 Mad. 547 (where, however, this point was not raised or considered), the question would be, whether at the date of the institution of the suit, there was a subsisting agreement falling within the provision. In one case in Bombay, one in Allahabad and one in Calcutta a different view has been taken without much discussion Bai Chandaba V/s. Kuver Saheb Bapu Saheb (1893) I.L.R. 18 Bom. 464, Mansa Puri V/s. Harbaghat Puri (1916) 37 I.C. 172 and Abdul Jabbar V/s. Sanu Bibi . But with great respect we are unable to agree with these decisions.