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Case Number

Civil Revn. Petn. No. 357 of 1950-1951

Attorney(S)

For the Appellant: M.K. Srinivasa Iyengar, M.Ramchandra Rao, Advocates.

Judges

Medapa, C.J
Vasudevamurthy, J.

Acts

provisions of Order 33

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Smart Summary

Case Summary — Vasudevamurthy, J. (Revision Petition)

Factual and Procedural Background

One Guruswami Naidu (the original plaintiff) filed an application under Order 33, Rule 1, Civil Procedure Code (C.P.C.) seeking permission to sue in forma pauperis for partition and possession of a half share in certain immovable properties. That application was accompanied by an unstamped plaint purporting to be under Order 7, Rule 1, C.P.C. Notices were issued on the application, but before the petitioner’s pauperism was enquired into and before the plaint was registered as a suit, Guruswami Naidu died.

The present petitioner (the deceased's son and who claims to be his only son and legal representative) filed two interlocutory applications:

I.A. No. 1 under Order 22, Rule 4, C.P.C. seeking to be brought on record as the legal representative of the deceased plaintiff and to continue the proceedings; and
I.A. No. 2 under Order 33, Rule 1, C.P.C. praying for permission to sue in forma pauperis and to continue his father’s suit because he was unable to pay the necessary court-fee.

The District Judge of Shimoga dismissed both applications. The District Judge held that (i) the right to sue in forma pauperis was a personal right of the deceased and did not survive to his legal representative, and (ii) the petitioner should either pay the court-fee on the plaint (so that it could be registered as a suit) or make a fresh application of his own observing the formalities for permission to sue in forma pauperis. The District Judge relied on the decision in Arifulla v. Unji Abdul Wahab (21 Mys. L.J. 201) and refused to follow Annapurnabai v. Balaji Maroti (AIR 1946 Nag 320).

This revision petition was referred to a Bench. The High Court, through Vasudevamurthy, J., allowed the revision, set aside the order of the court below, and directed the District Judge to dispose of I.A. Nos. 1 & 2 in the light of the observations made in the opinion. The parties were directed to bear their own costs.

Legal Issues Presented

Whether the right to obtain permission to sue in forma pauperis under Order 33, Rule 1, C.P.C. is a personal right of the original applicant which dies with him, or whether a legal representative can be substituted and continue the proceedings.
If the right is personal, whether a legal representative, once substituted as plaintiff, may either (a) pay the necessary court-fees to continue the plaint as a suit, or (b) make a fresh application under Order 33, Rule 1, C.P.C. based on his own pauperism to continue the deceased's proceedings.
Whether a court has the power to allow continuation of a suit in forma pauperis where the original application was filed by a deceased applicant or where the plaintiff becomes unable to pay additional court-fees after instituting a suit.

Arguments of the Parties

Petitioner (applicant seeking substitution)

The petitioner sought to be brought on record as the legal representative of the deceased plaintiff and to continue the proceedings initiated by his father.
The petitioner also sought permission to sue in forma pauperis under Order 33, Rule 1, on the ground that he was unable to pay the necessary court-fee on the plaint.

Respondent (opposing party / position before the District Judge)

The District Judge (and the respondent's position as reported) relied on Arifulla v. Unji Abdul Wahab (21 Mys. L.J. 201) and held that the right to sue in forma pauperis is personal to the deceased and does not survive to the legal representative; hence substitution to continue that particular application was not permissible.
The respondent contended that there is no provision in Order 33 for allowing substitution or for continuing the original pauper application once the original applicant has died (i.e., no course for the legal representative to be allowed to continue the deceased applicant’s O. 33 application).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Arifulla v. Unji Abdul Wahab, 21 Mys. L.J. 201	Observed (per Singaravelu Mudaliar, J.) that "The only way in which the petitioners can safeguard their rights is by their being allowed to pay the Court fees".	The District Judge relied on this decision to hold the right to sue in forma pauperis was personal and that legal representatives could only safeguard rights by paying court-fees. The High Court examined the case and found that the observation was not necessary to decide that case and that the facts (offer to pay fees by legal representatives) distinguished it.
K. Subbiah v. Bala Tripura Sundara, 51 Mad 697 (AIR 1928 Mad 278)	Held that where petitioner died pending petition, legal representative was not entitled to continue prosecution of petition for leave to sue as a pauper; reference made to legal representative's preparedness to pay or to show pauperism.	Cited as authority that legal representative may not automatically continue the petition, but can either pay court-fees or file a fresh application if the right to sue survives. The High Court referred to it approvingly as supporting substitution on payment or fresh application.
Mohan Mandal v. Satish Chandra, 33 Cal 1163	Authority that application for leave to sue in forma pauperis is a personal application and the applicant's legal representative cannot be substituted in that application; legal representative may present a fresh application if he himself is a pauper.	Referred to as a direct authority establishing that the right to obtain permission is personal and that substitute must, if appropriate, present a fresh application.
Bhoorilal v. Kanhaiyalal, AIR 1933 Nag 234	Relied on (with others) for the conclusion that the right to sue as a pauper is a personal one and dies with the person.	Used to show the general principle that the right to sue in forma pauperis is personal, while also illustrating that substitution as plaintiff is possible and the representative can then seek leave to sue as a pauper or pay fees.
Annapurnabai v. Balaji Maroti, AIR 1946 Nag 320	Held that substitution of legal representative places him in the position of the deceased plaintiff, not as the person who had applied to sue as a pauper; if the representative is unable to pay, he must apply for permission to sue as a pauper.	The District Judge had refused to follow this case; the High Court cited it as following the proposition that substitution is to the position of the deceased as plaintiff and that the representative must, if necessary, apply afresh for permission to sue as a pauper.
Mt. Marim Bibi v. Suraj Mal, AIR 1936 Pat 591	Referred to 51 Mad 697 with approval; held it was open to legal representative to continue proceedings by substitution on payment of court-fees or by filing fresh application for leave to sue as a pauper; lower court had not allowed sufficient time for substitution.	Cited as supporting the approach that courts should allow substitution with time to pay fees or to make a fresh application so that rights are not lost for want of time.
Kendall v. Hamilton (1878) 4 A.C. 504	Principle that procedural codes should be construed liberally; procedure is a machinery to facilitate administration of justice.	Invoked to support the proposition that Order 33 should not be treated as exhaustive and that technical objections should not defeat substantial justice.
Hukumcliand v. Kamalanand Singh, 33 Cal 927	Cited as authority for liberal construction of procedural provisions.	Used alongside other authorities to support the view that Order 33's provisions are not exhaustive of all situations and should be liberally construed.
Durga Dihal Das v. Anoraji, 17 All 29	Cited in support of liberal construction of procedure.	Relied on to show procedural rules are not exhaustive and technicalities should not obstruct justice.
Jogendra v. Wazidunnissa Khatun, 34 Cal 860	Cited for similar procedural-construction principles.	Included among authorities showing the Code should be construed to facilitate justice and not to be strictly exhaustive.
Hafiz Mahammad Fateh Nasib v. Aminuddin, 60 Cal 827	Held that where plaintiff instituted suit by payment of court-fee and was later directed to pay extra court-fee but could not, a court has power to allow plaintiff to continue suit in forma pauperis.	Relied on to demonstrate that courts possess power to allow continuation of a suit in forma pauperis in appropriate circumstances.
Nirmul Chandra v. Doyal Nath, 2 Cal 130	Held that the power to allow a case to be continued as a pauper suit is included in the power to allow a suit to be instituted in forma pauperis.	Used to justify permitting continuation of proceedings in forma pauperis where appropriate.
Thomson v. Calcutta Tramway Co., 20 Cal 319	Cited along with other Calcutta decisions to support the court's power to permit continuation in forma pauperis.	Included among authorities showing courts' power to allow continuation as a pauper suit.
Ravji v. Sakharam, 8 Bom 615	Cited along with other authorities on continuation in forma pauperis.	Used to reinforce the view that courts may permit continuation of suits in forma pauperis.
Brahamaramba v. Seetharamayya, AIR 1947 Mad 405	Conceived an application to sue in forma pauperis as a composite document (a plaint coupled with a prayer to sue without payment of court-fees); held that a legal representative who pays the necessary court-fees can be allowed to continue the suit.	Cited to support the view that where legal representatives can pay court-fees, they may be substituted and the suit continued; also supports the composite-document approach cited by the Court.
Duraipandiyan v. Solaimalai Pillai, AIR 1934 Mad 467	Cited in relation to the composite-document view of an application to sue in forma pauperis.	Used to support the construction that an application to sue in forma pauperis may be treated as a plaint coupled with a prayer for exemption from fees.
Stuart Skinner v. William Orde, 2 All 241 (P.C.)	Cited in support of construing an application to sue in forma pauperis as a composite document.	Relied upon as precedent for allowing a legal representative to continue a suit where the representative pays the necessary court-fees or otherwise satisfies the Court about pauperism.

Court's Reasoning and Analysis

The Court proceeded through a careful examination of the authorities relied on below and in argument and then applied legal principles to the facts of the case.

The Court observed that the District Judge relied primarily on Arifulla v. Unji Abdul Wahab (21 Mys. L.J. 201). On close examination the Court found that the observation in Arifulla about payment of court-fees was not necessary to decide that case; in Arifulla the legal representatives had offered to pay the court-fees and that factual position materially influenced the outcome in that case.
The Court reviewed decisions (K. Subbiah, Mohan Mandal / 33 Cal 1163 and others) which had held that the right to obtain permission to sue in forma pauperis is generally a personal right and does not automatically survive to a legal representative. These decisions, however, also recognised that a legal representative may be substituted in the deceased's place as plaintiff and, after substitution, the question whether the representative himself can sue as a pauper must be considered on its own merits.
The Court noted decisions (e.g., Mt. Marim Bibi; Annapurnabai) which follow the approach that substitution puts the representative in the position of the deceased plaintiff (i.e., as a claimant to the relief sought) and not as the person who originally applied to sue as a pauper; if the representative cannot pay fees he must apply for permission to sue as a pauper.
The Court emphasised the practical consequences for legal representatives if substitution and reasonable opportunity to pay fees or to make fresh application were not allowed: the legal representative’s claim might be defeated by limitation. The Court therefore stressed that procedural provisions are machinery to facilitate justice, not to obstruct it, and cited authorities for the proposition that the Code should be construed liberally and not as completely exhaustive.
Relying on authorities such as Hafiz Mahammad Fateh Nasib v. Aminuddin (60 Cal 827) and Nirmul Chandra v. Doyal Nath (2 Cal 130), the Court accepted that a Court has the power to allow a plaintiff to continue a suit in forma pauperis (for example, where the plaintiff first paid court-fee but later became unable to pay extra court-fees). The Court reasoned that if it is permissible to allow continuation in forma pauperis in such circumstances, it is difficult to see why a legal representative, who makes an independent application under Order 33, Rule 1 and who truly is a pauper, should be refused relief merely because the original applicant died.
The Court referred to decisions construing an application to sue in forma pauperis as a composite document (plaint + prayer for exemption) and noted that where the legal representative is able to pay the court-fees, substitution and payment can allow the suit to proceed; conversely, where the representative is himself a pauper, he can make a fresh application under Order 33, Rule 1 and, if he satisfies the Court of his pauperism, continue the suit in forma pauperis.
On this analysis the Court concluded there is nothing in principle or in any express provision of law that prevents a legal representative, who satisfies the Court that he is himself a pauper and unable to pay the court-fee, from being allowed to continue the deceased's earlier suit in forma pauperis; alternatively, substitution on payment of court-fees remains a permissible course.

Holding and Implications

Holding: Revision allowed. The order of the District Judge dismissing I.A. Nos. 1 & 2 was set aside. The District Judge was directed to dispose of I.A. Nos. 1 & 2 in the light of the observations made by the High Court. The parties were ordered to bear their own costs of the revision petition.

Implications:

The immediate and direct effect is that the District Judge must reconsider the two interlocutory applications (for substitution as legal representative and for permission to sue in forma pauperis) in accordance with the principles and authorities discussed by the High Court.
The Court indicated two permissible courses for legal representatives in such situations: (a) substitution as plaintiff followed by payment of the necessary court-fees to register and continue the suit; or (b) the legal representative may make a fresh application under Order 33, Rule 1, C.P.C. alleging and proving his own pauperism and, if the Court is satisfied, continue the earlier suit in forma pauperis.
The opinion emphasises a liberal construction of procedural provisions so as to prevent technicalities from defeating substantive justice (i.e., courts should, where appropriate, allow substitution and either payment of fees or a fresh pauper application so claims are not lost for procedural reasons).

End of summary — based exclusively on the supplied opinion text.

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C.G Devaraju Naidu And Another, v. T.M Prabhuviah And Others,

Vasudevamurthy, J.:— This revision petition has been referred to a Bench. It involves a question of law of some importance on which there has been no decided case of this Court so far.

2. One Guruswami Naidu, father of the petitioner who claims to be his only son and legal representative, filed an application under O. 33, R. 1, Civil P.C, seeking permission to sue in forma pauperis, for partition and possession of a half share in some immoveable properties. The application was accompanied by an unstamped plaint purporting to be under O. 7 R. 1, Civil P.C Notices were ordered on his application but before his pauperism was enquired into, and his application registered as a suit Guruswami Naidu died. The petitioner filed two applications I.A No. 1 under O. 22, R. 4, Civil P.C, to be brought on record as the legal representative of the deceased plaintiff and allowed to continue the proceedings initiated by his father; and I.A No. 2 under O. 33, R. 1, Civil P.C praying for permission to sue and continue his father's suit in forma pauperis as he himself was unable to pay the necessary court-fee on the plaint. The District Judge of Shimoga dismissed those two applications. He was of the view that the right to sue in forma pauperis was a right personal to the deceased and that the petitioner could not be allowed to continue those proceedings. His remedy was either to pay court-fee on the plaint already filed when the same could be registered as a suit, or make a fresh application of his own observing the necessary formalities for permission to sue in forma pauperis. In support of this order he has relied on a decision of this Court in — ‘Arifulla v. Unji Abdul Wahab’, 21 Mys. L.J 201 and refused to follow a case in — ‘Annapurnabai v. Balaji Maroti’, AIR 1946 Nag 320 as he considers that the same was opposed to the law laid down in 21 Mys L.J 201. There is no doubt that in 21 Mys L.J 201 at p. 205 Singaravelu Mudaliar, J. sitting as a single Judge in revision has observed:

“The only way in which the petitioners can safeguard their rights is by their being allowed to pay the Court fees”.

3. But when we come to examine that case closely we find that the observation was really not necessary for the purpose of deciding it.

4. In that case one A filed an application under O. 33, R. 1 for permission to sue in forma pauperis and died during the pendency of that application. An application by his legal representatives to be brought on record as such in that application itself was held to be not maintainable as the right to file an application under O. 33, R. 1 was a personal right and did not survive to the legal representatives. But the legal representatives had offered to pay the court-fees in the lower Court and asked for time to do so. This request had been refused and the offer was renewed in this Court. In those circumstances Singaravelu Mudaliar, J. held that the legal representatives may be allowed to be brought on record on payment of the court-fees or that they may file a separate application for leave to sue in forma pauperis if the right to sue had survived to them.

5. In this connection Singaravelu Mudaliar, J. observed that the only way in which the petitioner could safeguard their rights was by their being allowed to pay court-fees in order to take advantage of the provisions of S. 149, Civil P.C, a course suggested in — ‘K. Subbiah v. Bala Tripura Sundara’, 51 Mad 697. The question whether a legal representative could not file an independent application under O. 33, R. 1 in his own personal and individual right and based on his own personal inability to pay court-fees while praying separately to be brought on record as legal representative in the plaint filed by the original petitioner so that he may continue these proceedings did not arise in that case for decision as the legal representatives were able, ready and willing to pay the court-fees.

6. In —‘K. Subbiah v. Bala Tripura Sundara’, 51 Mad 697, the petitioner died pending disposal of his petition for leave to sue in forma pauperis. His legal representative was held not entitled to continue the further prosecution of the petition. Sreenivasa Ayyangar, J. observed that he did not see anything in the legal representative's petition itself to the effect that she was either prepared to continue the proceedings by paying the necessary court-fee or anything to show that she herself was a pauper. He has referred to — ‘Mohan Mandal v. Satish Chandra’, 33 Cal 1163 as a direct authority in the matter.

7. In 33 Cal 1163 the application was by the legal representative for being substituted in the place of his deceased father and for proceeding with the application for leave to sue as a pauper. That application was made apparently over 15 years after the death of the original petitioner. Their Lordships pointed out that there was no suit pending in Court but only an application for leave to sue in forma pauperis. The right to obtain such permission being only a personal right, the applicant could not ask for permission to sue as a pauper as legal representative of the deceased petitioner and to be substituted in his place. It was observed that it was open to the legal representative, if the right to sue survives in him, to present a fresh application if he is himself a pauper for permission to sue as such or to institute a suit for the same relief which the deceased had sought.

8. In — ‘Bhoorilal v. Kanhaiyalal’, AIR 1933 Nag 234, 33 Cal 1163 and AIR 1928 Mad 278 : 51 Mad 697 were relied on for the conclusion that the right to sue as a pauper is a personal one and dies with the person and does not survive to the legal representative. The legal representative, however, could be substituted for the deceased plaintiff in the ordinary course and then after substitution, the question whether the representative can himself sue as a pauper, which is a personal one to the representative, must be considered afresh. If the right to sue survives, the legal representative will have to continue the suit either as a pauper on a fresh application alleging and proving that he is a pauper or on payment of court-fee.

9. In —‘Annapurnabai v. Balaji Maroti’, AIR 1946 Nag 320 this last case has been followed. The substitution of legal representative, it was pointed out, in such case, is to the position of the deceased party as a plaintiff and not as a person applying for permission to sue as a pauper. He is being brought on record not as one suing for exemption from payment of court-fees but as one who is entitled to relief in respect of the original claim as a legal representative of the deceased. If he is unable to pay court-fee, he will have to apply to the Court for permission to sue as a pauper.

10. In —‘Mt. Marim Bibi v. Suraj Mal’, AIR 1936 Pat 591, 51 Mad 697 was referred to with approval as laying down that it was open to a legal representative to continue the proceedings as a suit by substitution on payment of court-fees or else by filing a fresh application for leave to sue as a pauper. The lower Court had in that case not allowed sufficient time to the applicant for substitution of the heirs of the deceased plaintiff and the High Court granted such time.

11. If such substitution is not allowed and time granted for payment of court-fee or for making a fresh application by the legal representative to be permitted to sue or continue the suit in forma pauperis, the consequences to the legal representative would be obviously very serious as his claim may be barred by time. For the respondent, it is contended that there is no provision in Order 33, for any such course. But it may be pointed out that the Code of Civil Procedure is not exhaustive, and procedure is were machinery and its object is to facilitate and not to obstruct the administration of justice; see — ‘Kendall v. Hamilton’, (1878) 4 A C 504 (525). The Code should therefore be construed liberally and as far as possible merely technical objections should not be allowed to defeat sub-stantial justice; see Mulla's Code of Civil Procedure, 11th Edition, page 2. — ‘Hukumcliand v. Kamalanand Singh’, 33 Cal 927 (940), — ‘Durga Dihal Das v. Anoraji’, 17 All 29 and — ‘Jogendra v. Wazidunnissa Khatun’, 34 Cal 860. The provisions of Order 33 cannot be treated as completely exhaustive of all the situations which may arise in respect of an application to sue as a pauper.

12. In — Hafiz Mahammad Fateh Nasib v. Aminuddin’, 60 Cal 827 a suit was instituted by the plaintiff in the ordinary manner by payment of court-fee on the valuation put on the plaint by him. He was later on directed to pay some extra. Court-fee and was unable to do so. He then made an application to continue his suit in forma pauperis. The Subordinate Judge refused to entertain such an application. It was held by the Calcutta High Court, following —‘Nirmul Chandra v. Doyal Nath’, 2 Cal 130, —‘Thomson v. Calcutta Tramway Co.’, 20 Cal 319 and —‘Ravji v. Sakharam’, 8 Bom 615, that a Court has the power to allow a plaintiff to continue a suit in the ordinary way in forma pauperis.

13. In 2 Cal 130 the power to allow a case to be continued as a pauper suit was held to be included in the power given to the Court to allow a suit to be instituted in forma pauperis. If it is permissible to do so it is difficult to see why in a case like the present if the petitioner is, as a matter of fact, a pauper unable to pay the necessary court-fee he should be refused relief if he makes an independent application of his own under O. 33, R. 1 for permission to continue his father's suit in forma pauperis. The view that court-fee could be paid by the legal representative on the application which had been filed in forma pauperis involves a recognition that there is a plaint on which such court-fee could be paid in addition to an applications personal to the original petitioner which has terminated by his death; see —‘Brahamaramba v. Seetharamayya’, AIR 1947 Mad 405, where relying on —‘K. Subbiah v. Bala Tripura Sundara’, AIR 1928 Mad 278; —‘Duraipandiyan v. Solaimalai Pillai’, AIR 1934 Mad 467 and —‘Stuart Skinner v. William Orde’, 2 All 241 (P.C), Leach C.J and Lakshmana Rao, J. construe an application, to sue in forma pauperis as a composite document — a plaint coupled with a prayer to sue without payment of Court-fees — to hold that a legal representative of a deceased applicant can be allowed to continue the suit after paying the necessary court-fees. In that case the legal representative was able to pay the court-fees. There would, therefore, be nothing wrong in principle in allowing a legal representative, provided he is able to satisfy the Court that he is himself a pauper and unable to pay the Court-fee, to continue the earlier suit in forma pauperis, nor has it been shown that it is opposed to any express provision of law.

14. In the result we allow this revision petition, set aside the order of the Court below and direct the District Judge to dispose of I.A Nos. 1 & 2 in the light of the observations we have made above. The parties will bear their own costs of this revision petition.

A/K.S

Revision allowed.

C.G Devaraju Naidu And Another, v. T.M Prabhuviah And Others,

Case Summary — Vasudevamurthy, J. (Revision Petition)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner (applicant seeking substitution)

Respondent (opposing party / position before the District Judge)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

C.G Devaraju Naidu And Another, v. T.M Prabhuviah And Others,

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