Badripershad vs Nirmalabai - 1977 Supreme(MP) 221

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates:
Advocate Appeared:
For the Petitioner: A.R. Choubey
For the Respondent: Sumerchand Jain

Headnote:(1) Civil Procedure Code, 1908 - O.33, R.9 - to continue the suit in forma pauperis not a right which is devolved on the legal representatives - legal representative has to apply for continuing the suit in forma pauperis, if he is not possessed of sufficient means to pay the Court - fees.
       (2) Civil Procedure Code, 1908 - O.33, R. 1 and 8 - trial Court allowing the legal representatives of the deceased pauper plaintiff to continue the suit in forma pauperis without scrutinising evidence or mentioning what property legal representatives possessed - order perfunctory - quashed.
       Short Note
       It was a defendant's revision from an interlocutory order passed by the trial Court allowing the legal representatives of the original plaintiff - Bansidhar to continue the suit in forma pauperis. The learned counsel for the non - petitioners, however, raised a preliminary point. His contention was that once the original plaintiff was held to be a pauper and leave was granted to him to sue as such, on his death his legal representatives stepped into his shoes and it was immaterial whether they were possessed of sufficient means to pay the Court - fees or not.
       2. Held : With utmost respect this Court is unable to concur in that view. The privilege of maintaining a suit as a pauper is a personal privilege. It is granted to a person, who has no means to institute a litigation or to continue it. On the death of a plaintiff, who has been granted leave to sue in forma pauperis, no doubt the right to sue may survive to his legal representatives. But, it is not the same thing to say that the right to sue as a pauper also survives necessarily. Legal representatives are of two categories - (1) in the capacity of an heir or a legatee, who is entitled personally or beneficially to the estate of the deceased and (2) who in a representative capacity, but having no personal or beneficial interest. In the later case, no doubt the position may be different and this Court reserves its opinion on that point. It is not necessary to express it in the present case. But in the former category where the legal representative has a personal or beneficial interest in the estate of deceased plaintiff, he cannot be allowed to continue the suit without payment of Court - fees, if he is possessed of means to do so. Since the right to continue the suit in forma pauperis is not a right which is devolved on the legal representative, but the deceased's personal right of the original plaintiff. The legal representative has to apply for continuing the suit in forma pauperis, if he is not possessed of sufficient means to pay the Court - fees. For these reasons the preliminary point raised by the learned counsel for the non - petitioners must be rejected. Lalit Mohan Mandal v. Satish Chandra Das, ILR 33 Cal. 1163, Rao Saheb Manaji Rajuji Kalewar v. Khandoo Baloo, ILR 36 Bom. 279, Re - Radhakrishna Iyer, AIR 1925 Mad. 819, Arumuga v. Subramania Goundan, AIR 1931 Mad. 324, Mst. Jankibai v. Mst. Bhikai, AIR 1933 Nagpur 334, Jatosingh v. Mst. Malki Kuer, AIR 1947 Patna 474, Vijai Pratap Singh v. Dukh Haran Nath, AIR 1962 SC 941, relied on. Smt. Kalawati Devi v. Chandra Prakash and others, AIR 1959 All. 37, dissented from.
       3. The order of the trial Court is perfunctory. It does not disclose any reason for which the legal representatives have been held to be paupers. Merely to say that from evidence the trial Court is satisfied is not enough. Although it was not necessary to give any lengthy or elaborate order, but the minimum necessity was that the learned Judge should have said some - thing what the witness Damodarprasad had said or he should have at least mentioned in his order what property the legal representatives are possessed of and to show that it could not be said in spite of those properties the legal representatives were not possessed of sufficient means to pay the Court - fees. Case remanded. Revision allowed.