The personal nature of the right to sue in forma pauperis and the liberal construction of procedural rules to facilitate justice.

VASUDEVAMURTHY, J.

( 1 ) 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 Gurtiswami Naidu, father of the petitioner who claims to be his only son and legal representative, filed an application under Order 33, Rule 1, Civil P. C. , seeking permission to sue in forma pauperis, for partition and possession of a half share in some tmmoveable properties. The application was accompanied by an unstamped plaint purporting to be under Order 7 Rule 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 LA. No. 1 under Order 22, B. 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. A. No. 2 under O. 33, rule 1, Civil P. C. praying for permission to sue md continue his father's suit in forma pauperis is he himself was unable to pay the necessary court-fee on the plaint.

( 3 ) 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 or 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 Singaraveiu 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".

But when we come to examine that case closely we find that the observation was really not necessary for the purpose of deciding it. In that case one A filed an application under Order 33, Rule 1 for permission to sue in forma pauperis and died during the pendency of that application. An application by his legal representatives fo be brought on record as such in that application itself was held to be not maintainable as the right to file an application under Order 33, Rule 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. 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 Section 149, Civil P. C. , a course suggested in -- 'k. Subbiah v. Bala Tri-pura Sundara', 51 Mad 697. The question whether a legal representative could not file an independent application under Order 33, Rule 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.

( 4 ) IN --'k. Subb

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