1987 Supreme(MP) 676

IN THE HIGH COURT OF MADHYA PRADESH
P.D. Mulye, J.
Champabai - Applicant
Vs.
Bhagwantibai - Non-applicant
C.R. No. 44 of 1987 (I)
Decided On : 17-07-1987

Headnote:(1) Civil Procedure Code, 1908 – O.33, R.1 – suit by pauper – not a personal relief of pauper.

       (2) Civil Procedure Code, 1908 – O.22, R.3 – plaintiff in pauper suit dying before decision on application to sue as pauper – his L.Rs. are entitled to be brought on record.

        Short Note

       Sukha Bai, widow of Durgadin during her life time brought a suit in forma pauperis as an indigent person to cancel the gift deed alleged to have been executed by her as a result of fraud practised on her by the non – applicants. This was numbered as Misc. Case No. 35 of 82. During the pendency of the proceedings for grant of permission to sue as an indigent person, Sukha Bai died on 8 – 2 – 1986.

       2. The petitioners submitted an application on 2 – 4 – 1986 before the lower Court to bring them on record as legal representatives of the deceased on the basis of a will dated 30 – 11 – 84 said to have been executed by the deceased in their favour for the property in dispute.

       3. The learned lower Court by the impugned order rejected the said application on the ground that the applicants in their application did not allege that they arc also indigent persons and that after the death of the original plaintiff the suit has automatically come to an end. He, therefore, dismissed the said application. Hence this revision.

       4. Held : The learned counsel for the petitioners submitted that unless and until the petitioners are brought on record in place of the original plaintiff, they could not file an application to the effect that either they are indigent persons or that they are ready to pay the requisite Court fees required in the suit. The learned counsel, therefore, submitted that an application filed as an indigent person is part and parcel of the suit and therefore, even though before the decision of the application filed by the original plaintiff seeking permission to sue as a pauper she died, it cannot be said that it was a personal right which came to an end on account of her death.

       5. The learned counsel for the petitioners, therefore, relying on the decision reported in 1966 JLJ 704 (Ramadharlal Nagendra Prasad v. Nagendra Prasad Sao) in which the basic decision of the Supreme Court reported in 1962 SC 941 (Vijay Pratap v. Dukh Haran Nath) and other decisions have been followed, submitted that the learned lower Court has thus committed an illegality in dismissing their application and also bolding that because of the death of the original plaintiff the case has come to an end.

       6. I may here usefully quote the observations of the Supreme Court in the aforesaid decision reported in 1962 SC 941, in para 13 as under, which is self explanatory: –

       "We are also of the view that the High Court was in error in holding that by an application to sue in forma pauperis, the applicant prays for relief personal to himself. An application to sue in forma pauperis, is but a method prescribed by the Code for institution of a suit by a pauper without payment of fee prescribed by the Court Fees Act. If the claim made by the applicant that he is pauper is not established, the application may fall. But there is nothing personal in such an application. The suit commences from the moment an application for permission to sue in forma pauperis as required by O.33 of the Code of Civil Procedure is presented, and O.1, R.10 of the Code of Civil Procedure would be as much applicable in such a suit as in a suit in which Court fee had been duly paid. It is true that a person who claims to join a petitioner must himself be a pauper. But his claim, to join by transposition as an applicant must be investigated. It is not liable to be rejected on the ground that the claim made by the original applicant is personal to himself. In our view, the orders passed by the High Court in both the revision applications must be set aside."

       In the light of this decision, which has been followed in 1966 JLJ 704 (supra) it is not necessary for me to consider the decisions which have taken a contrary view as submitted by the learned counsel for the non – applicants. AIR 1962 SC. followed, 1966 JLJ 704 relied on. Revision allowed.