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1978 Supreme(Ori) 15
Orissa High Court
S. ACHARYA, J.
Hara Satnami - Appellant
Versus
Dhaneswar Putel - Respondents
Misc. Appeal No. 35 of 1977
Decided On : 23 February 1978
R.C. Patnaik and P.K. Misra, for Appellant; J.K. Hohanty and D.P. Sahoo, for Respondent No. 1.
The financial capacity of the plaintiff himself, and not his next friend or near relations, is to be considered when determining indigency.
Headnote:
Indigent Person - Next Friend - Financial Capacity of Plaintiff - Court's Decision
Fact of the Case:
The appellant filed a petition to prosecute his suit as an indigent person, which was dismissed by the court below. The court rejected the petition mostly on the consideration that the appellant's natural father, representing the minor plaintiff, had substantial land.
Finding of the Court:
The court held that the financial capacity of the plaintiff himself, and not his next friend or near relations, is to be considered when dealing with a matter of this nature. The court found that the court below was not justified in rejecting the petition and set aside the impugned order, directing the lower court to decide the matter afresh in accordance with the law.
Issues: The main issue was the rejection of the appellant's petition to prosecute his suit as an indigent person based on the financial capacity of his next friend.
Ratio Decidendi: The court emphasized that the financial capacity of the plaintiff himself should be considered when determining indigency, and not that of his next friend or near relations.
Final Decision: The appeal was allowed, and the parties were directed to bear their own costs of the appeal. The lower court was instructed to dispose of the matter within two months from the receipt of the lower court records.
Judgement
JUDGMENT :- The appellant filed a petition in the court below under O. 33, R. 1, C.P.C. to allow him to prosecute his suit as an indigent person. That petition was dismissed by the impugned order and hence this appeal.
2. The court, as I find from the impugned order, has rejected the aforesaid petition of the appellant mostly on the consideration that his natural father, who is representing the minor plaintiff-petitioner in the suit as his next friend, has Ac. 8.29 decimals of land.
3. In dealing with a matter of this nature the financial capacity of the plaintiff himself, and not his next friend or near relations, is to be considered. In this connection, the decision reported in AIR 1929 Lah 746 (2) (Shavan Singh v. Mt. Man Kavir); AIR 1946 Lah 81 (Mohammad Ashraf v. Muhammad Bibi); AIR 1970 Delhi 81. (Kewal Krishan v. Khazan Singh) he seen. In the case reported in (1881) ILR 3 Mad 3 (Venkatnarasayya v. Achemma) it has been held that- "There is no rule which Requires that the circumstances of the next friend should be considered. In Golaupmones Dossee v. Prosonomoye Dossee ((1873) 11 Beng LR 373) it was held that an infant may sue in forma pauperis by a next friend who is also a pauper. The Court of the Sard Adalut of this Presidency held that the circumstances that the next friend was possessed of menus did not disentitle a minor to sue in forma pauperis."
Their Lordships have held that there is nothing in the Civil Procedure Code which prohibits the minor from suing in forma pauperis when the next Mend has substantial means.
In view of the consistent view held in our country on this question as stated above, the head note (b) in the decision reported in AIR 1933 Sind 82 (Chandumal v. Tejulbal) read along with what to stated in column 2 of page 84 of that decision appears to be the contention of the counsel appearing for the petitioner in that case.
4. On a perusal of the impugned order I hold that the court below was not justified in rejecting the said petition of the appellant on the reasons and grounds stated in the impugned order, Hence, the impugned order is set aside. The court below shall deal with and decide this matter afresh in accordance with law on giving another opportunity to both the parties to adduce relevant and proper evidence on this aspect of the matter, if they so desire. Notice under O. 33, R. 6 should be given to the Govt. Pleader before recording any such evidence. The matter however must be disposed of within two months from the receipt of the lower court records with intimation to this Court.
5. The appeal accordingly is allowed Parties to bear their own costs of this appeal. The L. C. R. be sent back to the court below immediately.
Appeal allowed.
