KHEMRAJ SHRIKRISHNADAS Vs. KISANLALA SURAJMAL

JUDGEMENT

(1.) This is an application for security for costs of an appeal. The applicant is the successful plaintiff who obtained, a decree against the defendant on the ground that an adoption under which the defendant obtained certain property was invalid. The defendant appealed by his natural father, he being a minor and applied for leave to appeal in forma pauperis. This application was granted and his appeal is accordingly governed by Order XLIV of the Code which provides that "any person...may be allowed to appeal as a pauper, subject, in. all matters including the presentation of such application, to the provisions relating to suits by paupers, in so far as those provisions are applicable." The provisions relating to suits by paupers are contained in Order XXXIII. Rule 11 of that Order provides that " where the plaintiff fails in the suit...the Court shall order the plaintiff, or any person added as a co-plaintiff to the suit, to pay the court-fees which would have been paid "by the plaintiff if he had not been permitted to sue as a pauper." That is the only statutory provision expressly imposing a liability upon a pauper-plaintiff and similarly upon a pauper-appellant, to pay any portion of the costs of the litigation.

(2.) It is, however, contended that an order for security should be made against the pauper and that he should give security for both the costs incurred in the lower Court and the costs of the appeal, because Order XLI, Rule 10 provides that "the appellate Court may in its discretion...demand from the appellant security for the costs of the appeal, or of the original suit, or of both : provided that the Court shall demand such security in all cases in which the appellant is residing out of British India and is not possessed of any sufficient immoveable property within British India other than the property (if any) to which the appeal relates."

(3.) That provision is in accordance with the rule of practice prevailing in England, namely that security for costs will generally be ordered where the appellant is out of the jurisdiction. But it is in a more imperative form, because it deprives the Court of any discretion. In such a case as the present the question is whether that general provision relating to appeals in Order XLI applies also to pauper appeals, so as to impose upon the Court the duty of demanding security from a pauper appellant, who ex hypothesi having been found to be a pauper cannot give security. In my opinion it does not apply. The maxim is generalia specialibus non, derogant; a general rule does not weaken a special rule. Here the special rule is the rule regarding pauper appeals and pauper suits. That rule is stated by the Master of the Rolls on behalf of the Full Court of Appeal in England as an established proposition. He says: "I start with the proposition, established centuries ago by statute and since developed by judicial decisions and now embodied in rules, that a person disabled by poverty is entitled to assert or defend his assumed rights without the liability to pay costs." That proposition was enunciated by the Master of the Rolls in a case In which the appellant had actually been ordered to give security for costs within a certain time, but before that time- elapsed obtained leave to appeal in forma pauperis and it was held that being allowed to appeal in forma pauperis, the order for security no longer operated. In my opinion we ought to follow the ruling of the Appeal Court in England Wilie v. St. John (1910) 1 Ch. 701,704 and accordingly this application should be dismissed, with costs. Beaman, J.