Person filing petition to implead himself has to describe himself as on indigent person.

This appeal is against the order of the 10th Assistant Judge, City Civil Court, Madras, in

O.P. No.192 of 1975, dismissing the petition seeking permission to file the suit as an indigent person.

2. The appellant’s mother by name Narasammal, filed the petition seeking permission to file the suit as an indigent person. The learned 10th Assistant Judge, City Civil Court, Madras, dismissed the petition, against which a revision was filed in this Court and this Court allowing the revision, remanded the matter for fresh consideration. During the pendency of this petition for enquiry, the appellant’s mother Narasammal died and the appellant herein got impleaded himself as the legal heir of the said Narasammal. He continued this petition under 0.33, Rule 1, Code of Civil Procedure as legal heir of his mother seeking permission to file the suit without payment of the court-fee. The 10th Assistant Judge, City Civil Court, has dismissed the petition holding that as this petition was filed by the appellant’s mother to permit her to file the suit as an indigent person, after her death, the relief sought for by her, which is personal, came to an end, that the appellant herein did not file a separate petition seeking permission to file the suit as an indigent person or amend the petition to describe himself as an indigent person and therefore, this petition was not maintainable.

3. The learned counsel appearing for the appellant Mr.Raghavachari, contended that when the original petition was filed with a prayer to permit the petitioner Narasammal as an indigent person, the suit also is deemed to have been instituted on that day, that though Narasammal died, her legal heir is entitled to continue the suit, that, therefore, no separate petition is required under O.33, Rule 1, Code of Civil Procedure seeking permission by the legal heir to permit him to file the suit as an indigent person as the suit was already instituted by the original plaintiff Narasammal, that as the Court has no find out whether Narasammal the original plaintiff, was an indigent person at the time of filing of the suit, there is no necessity to file a petition by this appellant, who is the legal representative of the deceased, or amend the plaint describing the appellant herein as an indigent person and therefore the order of the court below has to be set aside.

4. The learned counsel for the appellant cited a decision of the Apex Court in Vijay Pratap v. Dutch Haran Nath, A.I.R. 1962 S.C. 941: (1962)2 S.C.R. (Supp.) 673, has held that the application to sue in forma pauperis by the applicant is not personal to himself. Even though such is the observation of the Supreme Court, it has not laid down the rule that the legal heir of the deceased applicant is entitled to continue the same application without a prayer for permission to treat him as an indigent person. In the case before the Supreme Court, a minor filed the petition seeking permission to file the suit as an indigent person, but the court found that there was no cause of action for the suit and dismissed the petition. However, his father who was one of the defendants, filed a petition to transpose himself as a petitioner and the Supreme Court has held that in the event of his being transposed as a petitioner, he has to seek leave of the court to sue in forma pauperis. Therefore, in that case, the person, who wanted to be transposed, had to establish his indigency to continue the suit. Another decision relied upon by the learned counsel for the appellant namely Brahamaramba v. Seetharamayya, (1947)1 M.L.J. 119, also is not a decision on the point. In that case, one Dhulipala Venkata Subba Rao and his minor brothers filed the application seeking permission to sue in forma pauperis and before the petition came up for enquiry, the petitioner Dhulipala Venkata Subba Rao died and his mother got impleaded as a legal heir of the said Venkata Subba Rao. In that case, the mother expressed her willingness to pay