AMBALATHILAKATH KUTTOOSSA Vs. MUNDAYATAN KOROTHVEETTIL KUNHAMMA

JUDGEMENT

(1.) This is a Letters Patent Appeal from an order of a learned Judge of this Court refusing an application for security for costs in a pending first appeal. The learned Judge bases his order on three grounds: (1) that there was delay in applying; (2) that the application was not bona fide; and (3) that the effect of granting the application would be to stifle the appeal. We regret we are unable to uphold the learned Judge's view.

(2.) We should be reluctant to interfere in a matter of this sort, but for the fact, that the case raises certain questions of principle, in regard to the exercise of the Court's discretion, when security is demanded from an appellant. The proposition is well established that the appellant's poverty by itself would not be sufficient to warrant his being required to furnish security. That has not been seriously disputed here, but surely that does not mean that the appellant can rely upon his own poverty, as being an important or decisive factor, and resist the application on that ground Konammal V/s. Jadaya Goundan (1922) 17 L.W. 26. The suit has been brought by certain members of a tarwad to set aside the alienations made by the karnavan, who has been impleaded as the first defendant. The lower Court has found that the properties alienated were the self-acquisitions of the karnavan and that the case set up by the plaintiffs that they belonged to the tarwad, is false. The effect of the judgment is, that the suit is a vexatious one, and we wish to observe that had the matter stopped there, we should probably have hesitated to interfere with the order under appeal. But the Subordinate Judge goes on to point out that it was the first defendant, the alienor, that was in fact conducting the suit. He observes: I have closely watched his (the first defendant s) examination and cross- examination and I am convinced beyond doubt that his evidence is all stage- managed.... I have little doubt that he is practically engineering the whole suit.

(3.) In the affidavit filed in support of the application, it is alleged that the plaintiffs are paupers and that the first defendant is the person financing and conducting the litigation. This very important assertion remains uncontradicted.