The right to sue in forma pauperis is a personal right that dies with the plaintiff, and the legal representative cannot continue the suit without paying the court fee or proving indigency.

SARASWATEWWA VS. SHIVARUDRAPPA CHANNAPPA KINNALA

( 1 ) THIS revision petition is by the legal representative of the original plaintiff in O. S. No. 159 of 1957. When the legal representative in appeal came on record, he submitted that he could prosecute the appeal without paying Court fees since the original plaintiff was permitted to file the suit in forma pauperis. He further submitted that he himself was an indigent person within the meaning of Order 33 Rule 1 of the Civil Procedure Code. The learned Civil Judge who enquired into the matter has held that he would not be an indigent person as contemplated under Order 33, rule 1 C. P. C. He has further held that the legal representative has no immunity from paying the court fee. Aggrieved by the said order, the present revision petition is filed.

( 2 ) THE points, therefore, that arise for my consideration in this appeal are-

(1) Whether the learned Civil Judge was justified in holding that the legal representative of the original plaintiff who was permitted to sue in forma pauperis, can continue the suit without paying Court fee or without getting himself declared as an indigent person? (2) Whether the order passed by the learned Civil Judge that the legal representative of the original plaintiff is not an indigent person is legal and proper?

( 3 ) THE learned Advocate for the revision petitioner invited my attention to a decision in the case of Smt. Kalavati Devi v. Chandra Prakash, AIR1959 All 37 , wherein it is laid down that once the plaintiff is allowed to sue in forma pauperis, the legal representative, after the death of the plaintiff, can continue with the suit without paying the Court fee and without getting declared that he was also an indigent person. This ruling, however, is differed by this Court in the case of Hussain v. J. Khaza Hussain Sab, (1964) 2 Mys LJ 100. His Lordship chandrashekhar, J. , (as he then was) in that case referred to the decision in the Allahabad case and observed:

"mr. Muralidhar Rao, learned Counsel for the petitioner, relied on the decision in Kalavatidevi v. Chandra Prakash AIR1959 All 37 where Raghubar Dayal, J. , (before whom the case came up on difference of opinion between B. Mukerji and J. K. Tandon, JJ.) has held that a legal representative added as a party to the suit on the death of the plaintiff who had been allowed to sue as a pauper, cannot be called upon to pay the Court fee during the pendency of the suit as a condition precedent for continuing the suit as a legal representative of the deceased plaintiff ". . . . . . . . . . . . "the ratio of the decision of Raghubar Dayal, J. , in the said Allahabad case, is that the right to sue as a pauper is not a distinct and separate right from the right to sue for redress of the wrong".

"but the view taken by this Court in Salam B. S. R. V. Motors Private Ltd. v. S. S. Krishna sastry (AIR 1962 Mys 47) is that the right to sue as a pauper is a personal right distinct and separate from the right to sue for redress of wrong and dies with the person. The same view was taken up by the former High Court of Mysore in Devaraju Naidu v. T. M. Prabhuvaiah (AIR 1953 Mys 57 ). This is also the view taken in Lalit Mohan Mandal v. Satish Chandra Das ( (1906) ilr 33 Cal 1163); Mt. Janikibai v. Mt. Bhikai (AIR 1933 Nag 334) and Subbiah v. Bala Tripura sundara Boyamma (AIR 1928 Mad 278 ). "

"i should follow the view already taken by this Court which is also supported by preponderance of authority that the right to sue as a pauper is a personal right which dies with the plaintiff although this view was expressed by Somanath Iyer, J. , in considering the question whether the legal representative of the deceased applicant when sued in forma pauperis can continue such an application when the original applicant dies during the pendency of such application. " "once it is held that the right to sue in forma pauperis is a personal right which dies with the plaintiff who was granted such permission, it must fo

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