CHHAGANLAL Vs. GOVIND RAM

JUDGEMENT

(1.) THIS is an application by respondents for calling upon the appellant to furnish security for their costs of appeal and of the original suit under Order 41, Rule 10, Civil P.C. In view of the affidavit which supports the application I was on the point of passing a conditional order demanding the security from the appellant. But as in the meantime, the appellant came and raised the point that as he was allowed to appeal as a pauper, he could not be called upon to furnish security, I stayed my hands and gave the parties a date to argue the question whether security could be demanded from a pauper appellant. The appellant relies on Nusseerooddeen Biswas v. Ujjul Biswas [1870] 17 W.R. 68, Mt. Hafizan v. Abdul Karim [1908] 12 C.W.N. 163, Khemraj Shrikrishnadas v. Kisanlala Surajmal [1918] 42 Bom. 5, and Nazim v. Abdul Hamid A.I.R. 1922 Lah. 87, in support of his contention that a security cannot be demanded. The respondents on the other hand rely on B.F. Saldanha v. Henry Hart [1920] 43 Mad. 902, in support of their application for security.

(2.) I have considered all the cases cited also amongst others the cases of Seshayyangnr v. Jainulavadin [1881] 3 Mad. 66, and Srinivasa Sastrigal v. Subramania Aiyer [1907] 17 M.L.J. 583, on which the view taken in B.F. Saldanha v. Henry Hart [1920] 43 Mad. 902 is based In addition, to them I have also looked up the cases of Jogendra v. Funindro [1871] 18 W.R. 102, Maneckji Limji Mancherji v. Goolbai [1878] 3 Bom. 241, Ramsing v. Bahubai [1903] 5 Bom. L.R. 661, Lakhmi Chand v. Gatto Bai [1885] 7 All. 542, Jiwan Ali Beg v. Basa Mal [1886] 8 All. 203, Konammal v. Annadana Jadaya Goundan A.I.R. 1923 Mad. 204 and Ma Saw v. Maung Shwe Gon A.I.R. 1923 Rang. 244 and several others here-in-after learned to, with a view to satisfy myself as to the principle which underlies the provision for demanding security.

(3.) IT is on this principle that it has been held in Indian Courts that more proverty is no ground for requiring an appellant to give security for the costs of the appeal: Maneckji Limji Mancherji v. Goolbai [1887] 14 Cal. 533 and Lakhmi Chand v. Gatto Bai [1885] 7 All. 542. But the Full Bench of the Allahabad High Court in Jiwan Ali Beg v. Basa Mal [1886] 8 All. 203, has laid down the salutary rule in very guarded terms that the mere fact of poverty of the appellant standing by itself and without reference to any general facts of the case, ought not to be considered sufficient alone to warrant his being required to furnish security for costs. There are cases in which it has been held that a Court will as a general rule demand security for costs from, a poor or insolvent appellant if it is proved to the satisfaction of the Court that the appellant is not the real litigant but a mere puppet in the hands of the others who are able to furnish security Jogendra v. Funindro [1871] 18 W.R. 102, Khajah Assenoollajoo v. Solomon [1887] 14 Cal. 533 and Bomanjt v. Nusserwanji [1903] 27 Bom. 100. In the last mentioned case, where the following dictum of Bowen, L.J., in Gowell v. Taylor [1885] 31 Ch. D. 34 (at p. 38) was relied upon: