1. This revision petition has been referred to a Bench, it involves a question of law of some importance on which there has been no decided case of this Court so far.
2. One Gurtiswami Naidu, father of the petitioner who claims to be his only son and legal representative, filed an application under Order 33, Rule 1, Civil P. C., seeking permission to sue in forma pauperis, for partition and possession of a Half share in some immoveable properties. The application was accompanied by an unstamped plaint purporting to be under Order 7 Rule 1, Civil P. C. Notices were ordered on his application but before his pauperism was enquired into, and his application registered as a suit Guruswami Naidu died. The petitioner filed two applications LA. No. 1 under Order 22, B. 4, Civil P. C., to be brought on record as the legal representative of the deceased plaintiff and allowed to continue the proceedings initiated by his father; and I. A. No. 2 under O. 33, Rule 1, Civil P. C. praying for permission to sue md continue his father's suit in forma pauperis is he himself was unable to pay the necessary court-fee on the plaint.
3. The District Judge of Shimoga dismissed those two applications. He was of the view that the right to sue in forma pauperis was a right personal to the deceased and that the petitioner could not be allowed to continue those proceedings. His remedy was either to pay court-fee on the plaint already filed when the same could be registered as a suit, or make a fresh application of his own observing the necessary formalities for permission to sue in forma pauperis. In support or this order he has relied on a decision of this Court in -- 'Arifulla v. Unji Abdul Wahab', 21 Mys. L. J. 201 and refused to follow a case in --Annapurnabai v. Balaji Maroti', AIR 1946 Nag 320 as he considers that the same was opposed to the law laid down in 21 Mys L. J. 201. There is no doubt that in 21 Mys L. J. 201 at p. 205 Singaraveiu Mudaliar, J. sitting as a single Judge in revision has observed :
'The only way in which the petitioners can safeguard their rights is by their being allowed to pay the Court fees'.
But when we come to examine that case closely we find that the observation was really not necessary for the purpose of deciding it.
In that case one A filed an application under Order 33, Rule 1 for permission to sue in forma pauperis and died during the pendency of that application. An application by his legal representatives fo be brought on record as such in that application itself was held to be not maintainable as the right to file an application under Order 33, Rule 1 was a personal right and did not survive to the legal representatives. But the legal representatives had offered to pay the court-fees in the lower Court and asked for time to do so. This request had been refused and the offer was renewed in this Court. In those circumstances Singaravelu Mudaliar, J. held that the legal representatives may be allowed to be brought on record on payment of the court-fees or that they may file a separate application for leave to sue in forma pauperis if the right to sue had survived to them.
In this connection Singaravelu Mudaliar, J. observed that the only way in which the petitioner could safeguard their rights was by their being allowed to pay court-fees in order to take advantage of the provisions of Section 149, Civil P. C., a course suggested in -- 'K. Subbiah v. Bala Tripura Sundara', 51 Mad 697. The question whether a legal representative could not file an independent application under Order 33, Rule 1 in his own personal and individual right and based on his own personal inability to pay court-fees while praying separately to be brought on record as legal representative in the plaint filed by the original petitioner so that he may continue these proceedings did not arise in that case for decision as the legal representatives were able, ready and willing to pay the court-fees.
4. In --'K. SuBbiah v. Bala Tripura Sundara', 51 Mad 697, the petitioner died pending disposal of his petition for leave to sue in forma pauperis. His legal representative was held not entitled to continue the further prosecution of the petition. Sreenivasa Ayyangar, J. observed that he did not see anything in the legal representative's petition itself to the effect that she was either prepared to continue the proceedings by paying the necessary court-fee or anything to show thai she herself was a pauper. He has referred tc -- 'Mohan Mandal v. Satish Chandra', 33 Cal 1163 as a direct authority in the matter.
In 33 Cal 1163 the application was by the legal representative for being substituted in the place oi his deceased fat-tier and for proceeding with the application for leave to sue as a paripgr. That application was made apparently over 15 years after the death of the original petitioner. Their Lordships pointed out that there was no suit pending in Court but only an application for leave to sue in forma pauperis. The right to obtain such permission being only a personal right, the applicant could not ask for permission to sue as a pauper as legal representative of the deceased petitioner and to be substituted in his place. It was observed that it was open to the legal representative, if the right to sue survives in him, to present a fresh application if he is himself a pauper for permission to sue as such or to institute a suit for the same relief which the deceased had sought.
In -- 'Bhoorilal v. Kanhaiyalal', AIR 1933 Nag 234, 33 Cal 1163 and : AIR1928Mad278 : 51 Mad 697 were relied on for the conclusion that the right to sue as a pauper is a personal one and dies with the person and does not survive to the legal representative. The legal representative, however, could be substituted for the deceased plaintiff in the ordinary course and then alter substitution, the question whether the representative can himself sue as a pauper, which is a personal one to the representative, must be considered afresh. If the right to sue survives, the legal representative will have to continue the suit either as a pauper on a fresh application alleging and proving that he is a pauper or on payment of court-fee.
In -- 'Annapurnabai V. Balaji Maroti', AIR 1946 Nag 320 this last case has been followed. The substitution of legal representative, it was pointed out, in such case, is to the position of the deceased party as a plaintiff and not as a person applying for permission to sue as a pauper. He is being brought on record not as one suing for exemption from payment of court-fees but as one who is entitled to relief in respect of the original claim as a legal representative of the deceased. If he is unable to pay court-fee, he will have to apply to the Court for permission to sue as a pauper.
In --'Mt. Marim Bibi V. Suraj Mal', AIR 1936 Pat 591, 51 Mad 697 was referred to with approval as laying down that it was open to a legal representative to continue the proceedings as a suit by substitution on payment of court-fees or else by filing a fresh application for leave to sue as a pauper. The lower Court had in that case not allowed sufficient time to the applicant for substitution of the heirs of the deceased plaintiff and the High Court granted such time.
5. If such substitution is not allowed and time granted for payment of court-fee or for making a fresh application by the legal representative to be permitted to sue or continue the suit in forma pauperis, the consequences to the legal representative would be obviously very serious as his claim may be barred by time. For the respondent, it is contended that there is no provision in Order 33, for any such course. But it may be pointed out that the Code of Civil Procedure is not exhaustive, and procedure is where machinery and its object is to facilitate and not to obstinate the administration of justice; see -- 'Kendall v. Hamilton', (1878) 4 A C 504 (525). The Code should therefore be construed liberally and as far as possible merely technical objections should not be allowed to defeat substantial justice; see Mulla's Code of Civil Proce-. dure, 11th Edition, page 2. -- 'Hukumchand v. Kamalanand Singh', 33 Cal 927 (9401, -- 'Durga Dihal Das v. Anoraji', 17 All 29 and - 'Jogen-dra v. Wazidunnissa Khatun', 34 Cal 860. The provisions of Order 33 cannot be treated as completely exhaustive of all the situations which may arise in respect of an application to sue as a pauper.
In --Hafiz Mahammad Patch Nasib v. Amin-uddin', 60 Cal 827 a suit was instituted by the plaintiff in the ordinary manner by payment of court-fee on the valuation put on the plaint by him. He was later on directed to pay some extra. Court-fee and was unable to do so. He then made an application to continue his suit in forma pauperis. The Subordinate Judge refused to enter-lain such an application. It was held by the Calcutta High Court, following --'Nirmul Chandra v. Doyal Nath', 2 Cal 130, --'Thomson v. Calcutta Tramway Co, 20 Cal 319 and --'Ravjt. Patil v. Sakharam', 8 Bom 615, that a Court has the power to allow a plaintiff to continue a suit in the ordinary way in forma pauperis.
In 2 Cal 130 the power to allow a case to be continued as a pauper suit was held to be included in the power given to the Court to allow a suit to be instituted in forma pauperis. If it is permissible to do so it is difficult to see why in a case like the present if the petitioner is, as a matter of fact, a pauper unable to pay the necessary court-fee he should be refused relief if he makes an independent application of his own. under Order 33, Rule 1 for permission to continue his father's suit in forma pauperis.
The view that court-fee could be paid by the legal representative on the application which had been filed in forma pauperis involves a recognition that there is a plaint on which such court-fee could be paid in addition to an application personal to the original petitioner which has terminated by his death; see --'Brahamaramba v. Sectcharamayya', AIR 1947 Mad 405, where relying on --'K. Subbiah v. Bala Tripura Sundara' : AIR1928Mad278 ; --'Duraipandiyan v. Solaimalai Filial' : AIR1934Mad467 and --'Stuart Skinner v. William Orde', 2 All 241 (P. C.), Leach C. J. and Lakshmana Rao, J. construe an application, to sue in forma pauperis as a composite document -- a plaint coupled with a prayer to sue without payment of Court-fees -- to hold that a legal representative of a deceased applicant can be allowed to continue the suit after paying the necessary court-fees. In that case the legal representative was able to pay the court-fees. There would, therefore, be nothing wrong in principle in allowing a legal representative, provided he as able to satisfy the Court that he is himself a pauper and unable to pay the Court-fee, to continue the earlier suit in forma pauperis, nor has it been shown that it is opposed to any express provision of law.
6. In the result we allow this revision petition, set aside the order of the Court below and direct the District Judge to dispose of I. A. Nos. 1 & 2 in the light of the observations we have made above. The parties will bear their own costs of this revision petition.
7. Revision allowed.