Suit being not Bonafide if a ground for ordering security of costs to be furnished.

This revision petition is against the order of the Subordinate-Judge of Devakottai directing the petitioners to furnish security for costs of the suit. The petitioners claimed to be the illegitimate sons of one Karuppan Chettiar and instituted a suit for partition of the properties of Karuppan Chettiar claiming a share as the offspring of his continuously kept concubine. The parties are Sudras. The defendants are the sons of Karuppan Chettiar who resisted the suit on several grounds. The suit was instituted in forma pauperis, and the properties were valued at nearly Rs. 3 lakhs. Karuppan Chettiar died before the suit, and sometime before his death the petitioners’ mother obtained an order from a Magistrate for maintenance on the footing that the petitioners were the children and that she, their mother, was the lawful wife of Karuppan Chettiar. Thereupon Karuppan Chettiar filed a suit for a declaration that the petitioners’ mother was not his legally wedded wife; and that suit was decided in favour of Karuppan Chettiar in about August 1943. In the present suit, O.S. No. 147 of 1948, on the file of the Sub-Court, Devakottai, the respondents relied upon a registered partition deed dated 4th February, 1943 and alleged that Karuppan Chettiar became divided from them under that document and that the petitioners were made aware of the existence of the partition deed by notice sent to them as early as 29th November, 1943 that the fact of partition was also made clear in certain proceedings taken by the mother of the petitioners in execution for recovery of the maintenance ordered. by the Magistrate, and that the plaintiffs’ mother was fully aware of the partition, claim set up by the respondents.

The respondents applied in I,A. No. 274 of 1949 under Order 25, rule 1 and section 151, Civil Procedure Code, directing the petitioners to furnish security for the costs of the suit, apparently on the ground that the suit was not a bona fide suit. The learned Judge agreeing with, the contentions of the respondents directed the petitioners to furnish security for costs incurred and likely to be incurred by the respondents. Against this order the present revision petition is filed.

The learned Judge placed reliance on the fact that the petitioners’ mother was fully aware of the partition, and that in spite of that knowledge, not a word about the partition deed was mentioned in the plaint, and that even after the respondents filed their written statement,. no reply statement was filed regarding the partition, and that therefore the suit could not be said to be a bona fide suit. On. the sole ground that the suit was not a bona fide suit, the learned Judge held that he was entitled under section 151, Civil Procedure Code, to exercise the inherent powers vested in the Court and directed security to be furnished relying upon a decision in Chainrai Valiram v. The Sunday Times1 .

It is contended on behalf of the petitioners that security for costs can only be awarded for the reasons and circumstances mentioned in Order 25, rule 1, and not. on other grounds, and that in any event section 151 cannot be invoked in an application of this nature. Learned counsel cited Bhairabendra Narain Deb v. Udai Narain Deb2, in support of his contention. Cuming J., with reference to the facts of that case which do not strictly come within the purview of Order 25, rule 1 observes as follows:

"With great respect it seems to me that it is very doubtful if the inherent power of the court can be called in aid in the present case. Had the, Code been entirely silent on the point, then possibly the inherent power of the court might have been invoked, but when the Code does make certain provisions for the taking of security for costs from the plaintiff, it seems to me that in those cases and those cases only may costs be taken from the plaintiff and that for security for costs to be demanded from the plaintiff the case must fall within the purview of Order 25, rule 1."

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