1. The point that arises for consideration in this petition is whether in a suit which is allowed to be filed in forma pauperis, on the death of the plaintiff his legal representative can be dispaupered under Order 33, Rule 9, Civil P. c. on the ground that he or she has means to pay the court-fees.
2. The plaintiff in the suit O. S. No. 191/52 on the file of 1st Additional Subordinate Judge, Vijayawada was allowed to file the suit in forma pauperis. As the suit was finally dismissed, he filed in appeal A. s. 98/61. During the pendency of the appeal, as the plaintiff died, his wife was brought on record as his legal representative. The defendant then filed this petition I. A. 628/69 under O. 33, R. 9, Civil P. C. to dispauper her on the ground that she has a house in Vijayawada worth R. 35,000/-. The widow who has been added as the legal representative of the deceased appellant, did not deny the same but contended that it is her Stridhana property and therefore this cannot be taken into consideration to dispauper her, that as her husband who was the plaintiff had left no property and that she must be allowed to continue and appeal as a pauper. The Subordinate Judge accepted the contentions of the appellant and dismissed the petition. Hence this petition to revise that order.
Order 33, Rule 9 (b), Civil P. C. reads as follows:-----
'Rule 9. The Court may, on the application of the defendant, or of the Government Pleader. of which seven days' clear notice in writing has been given to the plaintiff, order the plaintiff to be dispaupered:
(a) X X X X
(b) if it appears that his means are such that he ought not to continue to sue as a pauper; or
(c) X X X X
The plaintiff or the appellant can be dispaupered if it appears at any time during the pendency of the litigation that his means are such that he ought not to continue to sue as a pauper. In Re Radhakrishna Iyer, Air 1925 Mad 819 where the plaintiff had filed an application to be allowed to sue in forma pauperis and during the pendency of the application he died and one Radhakrishna Iyer wanted to be brought on record as the petitioner and be allowed to sue in forma pauperis, having derived the right to sue from the plaintiff without alleging that the himself is a pauper it was held that the petitioner must pay the necessary court-fees unless he himself is entitled to sue in forma pauperis before continuing the proceedings. In Arumuga v. Subramania, Air 1931 Mad 324 where the pauper plaintiff died pendente lite and his heir who was added pendente lite as his legal representative was found to be possessed of sufficient means to pay the court-fees. it was held that the heir could be dispaupered under O 33, R. 9, Civil P., C. It was further pointed out on the contention that an application to dispauper can only be filed against the particular plaintiff, who is permitted to file the suit as a pauper and not against any body who might take his place such as his legal representative or assignee, it was held that such a plea cannot be sustained, for, under section 146, Civil. P. C. any application which can be made by or against a person can also be made by or against any person claiming under him and if it was open to the defendant to apply to dispauper the original plaintiff for proper reasons, it must also be open to him to apply to dispauper his legal representative claiming under him for similar reasons.
3. The object of Order 33 is to see that even a pauper has recourse to Courts of law for the adjudication of the disputes and he is exempted from paying the court-fee prescribed. Ordinarily, anyone suing in a Civil Court must pay court-fee prescribed. Ordinarily, any one suing in a Civil Court must pay court-fee prescribed. by law for the plaint and subsequent proceedings in the suit. The pauper is absolved of this obligation on account of the fact that their is not possessed of any means. But at any time if he comes into possession of any means for filing the suit, he would not be entitled to continue as a pauper and O. 33, R. 9, Civil P. C. provides for dispaupering him. In the present case, the plaintiff's widow has come on record as the Legal Representative seeking to continue the proceeding as the heir in her personal capacity. As long as she has means to pay, her position must be equated to that of the plaintiff pauper who was allowed to sue in forma pauperis coming into possession of means to pay subsequent to the original order. It is therefore clear that the widow of the original plaintiff who seeks to continue the appeal as his heir and who is admittedly possessed of means should be made to pay the court-fees in appeal.
4. It is however contended that as the first appellate court has held that the widow who is continuing the suit need not pay the court-fees it is the State which is primarily interpreted in questioning the legality interested in questioning the legality or correctness of the order granting leave to continue the suit in forma pauperis and not be defendant and therefore the order of the Court need not be interfered with in revision. For this proposition the rulings in Chinnamani Nadar v. Devaginubai Rajan, 1958 2 Mad LJ 93 Kalimathu v. Govindaswami, : AIR1961Mad71 are relied on. In those decisions support was sought from prior decision under the Court-fees Act where they held that it is the State that is interested in court-fees and not the Defendant or Respondent in the case. We are now concerned with O. 33, R. 9 which provides that an application for dispaupering can be filed either by the State or by the Defendant himself. When the right of filing such an application is given to the defendant, the right to go in appeal or in revision cannot be denied to him. What has to be seen is whether the party wanting to continue the proceedings in forma pauperis, is without any means and whether he or she has a right to continue the proceedings in forma pauperis. When once that is found that has to be given effect to and there can be no bar to the defendant also filing a revision petition. The order of the lower court is therefore set aside and the appellant who came on record as the legal representative of the plaintiff is directed to pay the court-fee in appeal. The court below will give the appellant sufficient time for payment.
5. The revision petition is therefore allowed. No Costs.
6. Revision allowed.