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Namubai Vs. Daji Govind Warang - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number O.C.J. Suit No. 640 of 1910
Judge
Reported in(1910)12BOMLR1071
AppellantNamubai
RespondentDaji Govind Warang
Excerpt:
.....her moral character. the plaintiff in filing the suit appeared to have been actuated by perfectly bona fide motives, and to have filed it in the bona fide belief that the defendant was the person who circulated the report and for the bona fide purpose of protecting her right to maintenance and defending herself against the gravest charges of immorality. the defendant applied for security of his costs to be required from the plaintiff, under 0 xxv, rule 1 of the civil procedure code, 1908 :-;that it would be a wrong exercise of the discretion, under order xxv, rule 1, if the court were to practically defeat the suit when it was quite ripe for hearing, by ordering the plaintiff to lodge security.;held, further, that the court could, if it so chose, exercise the discretion given by the..........the only test i can apply to see whether i ought to make this order or not is the test of bona fides. is this a bona fide suit brought by this lady for the vindication of her honour and incidentally for the protection of her right to be paid maintenance she is a hindu widow and if she sits down under this accusation of unchastity, it is clear that it will not be long before steps are taken to deprive her of her maintenance. for the purpose of seeing whether it is a bona fide suit or not, it appears to me that exh. b to the plaint is a most important document. that purports to be a decision of a meeting of the caste, which took place on the 12th of july last, it is signed by six of the leading members of the caste and states: 'on hearing a very bad report the details of which are.....
Judgment:

Robertson, J.

1. This is a summons taken out by the defendant calling upon the plaintiff to show cause why she should not deposit security for the defendant's costs under Order XXV, Rule 1.

2. The discretion given by that rule is one of the most difficult that a Court can be called upon to exercise. On the one hand it is clear that to refuse to make the order would in a number of cases open the door to very great injustice being done to the defendant, who would be put in the position of having either to have to defend the suit at his own costs or paying something to the plaintiff to settle the suit. On the other hand it is perfectly clear that a rigid application of the power to order security to all cases, except the very narrow class, which was suggested by the defendant's counsel in this case, might very often result in nothing less than an entire denial of justice to the plaintiff merely on the ground that he or she had not sufficient money to prosecute the suit.

3. In this case practically the only test I can apply to see whether I ought to make this order or not is the test of bona fides. Is this a bona fide suit brought by this lady for the vindication of her honour and incidentally for the protection of her right to be paid maintenance She is a Hindu widow and if she sits down under this accusation of unchastity, it is clear that it will not be long before steps are taken to deprive her of her maintenance. For the purpose of seeing whether it is a bona fide suit or not, it appears to me that Exh. B to the plaint is a most important document. That purports to be a decision of a meeting of the caste, which took place on the 12th of July last, it is signed by six of the leading members of the caste and states: 'On hearing a very bad report the details of which are given below we pass the following resolution: Daji Govind Warang liquor vendor in a shop at Vadala is circulating a report that Namubai (that is the plaintiff) the widow of Bapu Balaji Thakur is in illicit intercourse with Waman Hari Mahtre a resident of the same place.' I am not dealing with the point whether or not that is in any way evidence against Daji Govind Warang that he actually did circulate that report; but it shows that those who are in the best position to know were of opinion that he had been circulating the report, and therefore there is not the slightest reason for doubting the plaintiff's bona fides in believing that it was Daji Govind Warang who did circulate the report. I do not think that the letter of the 16th of July 1910, written by his solicitors on behalf of the defendant, is couched in such terms as would be likely to remove the strong suspicion that it was the defendant who had circulated this report, which would arise on the perusal of Exh. B to the plaint; further I do not think myself that the written statement of the defendant is altogether so free from ambiguity as his counsel has suggested it is.

4. Under these circumstances without in the least expressing an opinion of what the result will finally be, it appears to me that beyond all reasonable doubt the plaintiff in filing this suit has been actuated by perfectly bona fide motives, and that it is filed in the bona fide belief that the defendant is the person who circulated this report, and for the bona fide purpose of protecting her right to maintenance, and defending herself against the gravest charges of immorality.

5. Under those circumstances, it appears to me that it would be a wrong exercise of the discretion that I have under Order XXV, Rule 1, if I were to practically defeat the suit at this stage when it is almost, if not quite, ripe for hearing, by ordering the plaintiff to lodge security. At the same time I think that I am entitled, as a discretion is given me under the section, to exercise that discretion only upon certain terms, which I think I am entitled to impose upon the plaintiff. And I only refuse this application on the distinct undertaking by the plaintiff that she will abandon all Police Court proceedings, which she has instituted against the defendant. If she does not do that, then I shall be prepared to hear any renewed application that the defendant may make for the exercise of my discretion under Order XXV, Rule 1. In the meantime I think that the defendant having regard to the Police proceedings, which were taken against him, was excused for coining here to make this application. No doubt the summons was taken out before the defendant knew anything about the Police Court proceedings; but the Police Court proceedings having been taken out, it is quite clear he would on its coming to his notice be entitled to come to the Court for protection from concurrent proceedings in the Police Court, and in this Court, by a confessedly impecunious party. I, therefore, direct that the costs of this summons be costs in the cause; but the summons itself will be discharged. Counsel certified.


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