1989 Supreme(MP) 775

IN THE HIGH COURT OF MADHYA PRADESH
S.K. Dubey, J.
Balmukund – Applicant
Vs.
M. P. State – Non-Applicant
C. R. No. 835 of 1984 (I)
Decided On : 04-01-1989

Headnote:(1) Civil Procedure Code, 1908 - O.33, R.1 - pauper suit - commences from date of application - registration immaterial.

       (2) Civil Procedure Code, 1908 - O. 25, R. 1 - discretionary powers under cannot be exercised arbitrarily without assigning reasons.

       Short Note

       1. The facts leading to this revision are that the applicants filed an application under order 33, rule 1 of the Code of Civil Procedure for granting them permission to file a suit in forma pauper is for damages for malicious prosecution against defendants Nos. 2 and 3. On notice, the State as well as the non - applicants appeared and filed their objections. During the pendency of the application under order 33, rule 1 C.P.C. for granting of a permission to sue as indigent person, non - applicants moved an application under order 25, rule 1 C.P.C. for order of security towards payment of costs. The trial Court passed the impugned order which reads as under:

        vfrfjDr vkosnu i= ØekadA fy;k x;kA

       rdZ lqukA

       fopkj fd;k

       vkosndx.k dks funsZ'k fn;k x;k fd os 4000@& :i;s dh tekur O;; ckcr nsA

       2. By this order the trial Court directed the applicants to furnish security of Rs. 4000/ - towards costs. It is this order which has been challenged in revision.

       3. Held: The contention of Shri K.P. Gupta learned counsel for the applicants that an application in forma pauper is under O. 33, R. 1 C.P.C. cannot be termed as suit unless it is allowed, has no substance. It is now settled by the decision of the Apex Court that the suit commences from the moment the application in forma pauper is is filed. (See AIR 1962 SC 941, Vijai Pratap Singh v. Dukh Haran Nath Singh). The Division Bench of this Court also took the view that a suit is instituted when the plaint is presented and not when it is registered.

       4. The other contention of Shri Gupta has force. A bare reading of the order 25, rule I CPC shows that powers can be exercised in a suit by the Court, either at its own motion or at the application of the defendant. The power conferred on the Court by this provision for demanding security from plaintiff for payment of a1l costs incurred and likely to be incurred by any defendant can be exercised only after the' defence is filed and before the judgment is delivered. Before passing an order, reasons are to be recorded showing that exercise of power is necessary for the reasonable protection of the interests of the defendant. The order cannot be passed as a matter of course. (See AIR 1947 Nagpur 124 Mangilal Sitaram Agarwal v. Mt. Durgabai). The impugned order is laconic, non - speaking without application of mind, hence discretionary power so exercised by the Trial Court is not. judicious and is arbitrary. without giving any reasons for necessity of passing of such an order. hence, the order demanding security cannot stand and is liable to be set aside and is hereby set aside. AIR 1962 SC 941 followed. AIR 1947 Nag, 124 relied on.

       Revision allowed.