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1959 Supreme(Ker) 24
Judges : KUMARA PILLAI
R.Narasinga Shenoi - Appellant
Versus
G.Madhava Prabhu - Respondent
Case No : C. R. P. No. 502 of 1958
Decided On : 01/20/1959
Advocates Appeared :
T. S. Venkiteswara Iyer; R. C. Plappilly; For Petitioner T. S. Krishnamurthy Iyer; For Respondents 1 & 2
An insolvent suing as a nominal plaintiff for the benefit of someone else must give security to prevent abuse, as per the exercise of discretion under Order XXV Rule 1, Code of Civil Procedure.
Headnote:
Security for Costs - Nominal Plaintiff - Exercise of Discretion under Order XXV Rule 1, Code of Civil Procedure
Fact of the Case:
The plaintiff, an insolvent, filed a suit on behalf of a Samajam to recover amounts due, opposing the defendant's application to furnish security for costs. The court had discretion to decide whether the plaintiff should be called upon to furnish security.
Finding of the Court:
The court found that the plaintiff was a nominal plaintiff, and the real plaintiff, the Samajam, possessed properties but did not file the suit. To prevent abuse, the court exercised its discretion to call upon the insolvent plaintiff to give security for costs.
Issues: The issue was whether the plaintiff, as a nominal plaintiff, should be required to furnish security for costs, considering the possession of properties by the real plaintiff, the Samajam.
Ratio Decidendi: The court applied the legal principle that an insolvent suing as a nominal plaintiff for the benefit of someone else must give security to prevent abuse. The exercise of discretion under Order XXV Rule 1 was found to be necessary in this case.
Final Decision: The court confirmed the lower court's order, dismissing the revision petition and requiring the plaintiff to give security for costs.
1. This is a petition to revise an order of the District Munsiff of Crangannore, passed under O.XXV, R.1, Code of Civil Procedure, calling upon the plaintiff to furnish security for costs of the defendants. Plaintiff has admittedly no property and he has also filed an insolvency petition. The defendant application under 0. XXV R.1 C. P. C. to order the plaintiff to furnish security for costs was opposed by the plaintiff on the grounds that the mere fact of his poverty was not sufficient for calling upon him to furnish security for costs and that as the suit was filed by him on behalf of the Samajam and the Samajam was possessed of properties O. XXV R.1 could have no application to this case at all.
2. Or. XXV R.1, Code of Civil Procedure, reads as follows:
"I. (1) At any stage of a suit, the court may either of its own motion or on the application of any defendant, order the plaintiff, for reasons to be recorded, to give within the time fix d by it security for the payment of all costs incurred and likely to be incurred by any defendant:
Provided that such an order shall be made in all cases in which it appears to the court that a sole plaintiff is, or (when there are more plaintiff's than one) that all the plaintiffs are, residing out of India and that such plaintiff does not possess or that no one of such plaintiffs possesses any sufficient immovable property within India other than the property in suit.
(2) Whoever leaves India under such circumstances as to afford reasonable probability that he will not be forthcoming whenever he may be called upon to pay costs shall be deemed to be residing out of India within the meaning of the proviso to sub-rule (1)".
It is common ground that neither clause (2) nor the proviso to clause (1), both of which make it obligatory on the part of the court to call upon the plaintiff to furnish security applies to this case. Under the first paragraph of sub-clause (1) the court has a discretion to decide whether the plaintiff should be called upon to furnish security or not, and the only question for decision is whether that discretion has been properly exercised in this case.
3. It was contended on behalf of the revision petitioner that the real plaintiff in this case is the Samajam and not the person who has filed the plaint and the Samajam being possessed of properties there is no ground for calling upon the plaintiff to furnish security, and that even if it is considered that the real plaintiff is not the Samajam but the person who has filed the plaint his poverty is not a ground for calling upon him to furnish security as he has filed the suit merely to protect the interests of the Samajam.
4. The Samajam is not eo nomini the plaintiff in this suit. The plaintiff eo nomini is the revision petitioner and what he has asked in the plaint is for a decree to be given to him for recovering, on behalf of the Samajam, the amounts said to be due to it. He is not the person entitled under the bye-laws of the Samajam to bring the suit on its behalf. It is only by virtue of his right as a mere member of the Samajam that the suit has been brought. Admittedly the Samajam possesses properties, and there are many members in it some of whom also admittedly possess properties. And yet, the suit, which it is alleged has been filed on behalf of the Samajam, has been brought by an insolvent. In these circumstances, if the suit has been brought with the authority or the consent of the Samajam or of the majority of its members, there is every reason to suspect that the insolvent has been made to file the suit in order to enable the Samajam to escape the liability for costs if the suit is dismissed.
5. Bowen, L. J., has observed in Cowell v. Taylor (1886) XXXI Ch, D. 34:
"The general rule is that poverty is no bar to a litigant that, from time immemorial has been the rule at common law, and also, I believe, in equity. There is an exception in the case of appeals but there the appellant has had the benefit of
