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Sunder Singh Vs. Om Parkash and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 231 of 1976
Judge
Reported inAIR1977Delhi142; ILR1977Delhi405
ActsCode of Civil Procedure (CPC), 1908 - Order 33, Rule 9
AppellantSunder Singh
RespondentOm Parkash and ors.
Advocates: K.L. Arya and; D.L. Malhotra, Advs
Cases ReferredMandam Abdul Sattar Saheb v. H. Abdul Hakeem
Excerpt:
.....read with order 22--effect of the death of plaintiff--applicant in a forma pauperis suit--whether legal representatives must show that they were also paupers.; in the instant case, a question arose as the whether the legal representatives of the deceased plaintiff, who were permitted to sue as pauper, must show that they were also paupers.; as follows:-; (1) where a petitioner applies to the court for permission to sue as a pauper and the permission has not yet been granted and the suit has not been registered and he dies, his legal representatives must show that they are also paupers before they can be allowed to sue in pauperis; (2) on the other hand, if the petitioner has been allowed to sue in pauperis and his petition has been converted into a plaint and the suit has been numbered..........by the applicant in person or by his authorised agent under the circumstances specified in the rule rule 4 provides for the examination of the applicant. rule 5 lays down the grounds when the application for permission to sue as pauper should be rejected and one of the grounds mentioned in clause (b) is where the applicant is not a pauper. rule 6 prescribes that where the court sees no reason to reject the application, it shall fix a date for receiving evidence of his pauperism as well as evidence in disproof thereof. rule 7 prescribes the procedure for hearing the petition and its sub-rule (3) lays down that the court shall then: either allow or refuse the applicant to sue as a pauper. rule 8 reads as follows: 'wherethe application is granted, it shall be numbered and registered,.....
Judgment:

B.C. Misra, J.

(1) This civil revision petition has been filed by the defendant under section 115 of the Code of Civil Procedure and is directed against the order of the Additional District Judge, dated 27th January, 1976 by which he has declared the respondents as paupers aad rejected the objections of the petitioner.

(2) The material facts of the case are that Smt. Sham Kaur. predecessor-in-interest of the respondents instituted the suit for specific performance of contract of sale in respect of property in dispute in forma pauperis. She was allowed to sue in pauperis and the suit was registered. Smt. Sham Kaur died on 14th June, 1973 and the respondents before me were brought on record as her legal representatives. The question that was raised in the suit was whether the respondents, who were the legal representatives were paupers. On the pleadings of the parties, the following three issues were framed :

'1.Are the legal representatives of Smt. Sham Kaur, deceased, paupers? 2. In case it is found that the legal representatives are not pauper, are they not liable to pay the court fees? 3. Relief.'

(3) The parties proceeded to trial. The respondents produced evidence, while the petitioner did not produce any evidence. Consequently, the court appraised the evidence and believing the evidence produced on behalf of the respondents recorded a finding that the respondents were paupers. Eventually, issue No. 1 was answered in the affirmative; the second issue in the negative and in answer to issue No. 3 the suit was directed to be registered as a suit. Feeling aggrieved, the defendant petitioner has filed this revision and assailed the order.

(4) Mr. K. L. Arya, counsel for the petitioner, has raised the following contentions: (1) the right to sue or proceed in forma pauperis is personal and perishes with the death of the party; (2) the suit could not be allowed to proceed unless the legal representatives were also declared as paupers, and (3) the finding of the court below that the respondents were paupers is contrary to law.

(5) The rules relating to pauper suit are contained in Order S3 of the Code of Civil Procedure. Rule I prescribes the definition of a pauper and provides that a suit must be instituted by a pauper. Rule 2 provides that the application for permission to sue as pauper shall contain the particulars required in regard to plaints in suits together with a schedule of the properties and their value annexed thereto and the petition will be signed and verified in the manner prescribed for signing and verifying the pleadings. Rule 3 prescribes that the petition shall be presented by the applicant in person or by his authorised agent under the circumstances specified in the rule Rule 4 provides for the examination of the applicant. Rule 5 lays down the grounds when the application for permission to sue as pauper should be rejected and one of the grounds mentioned in clause (b) is where the applicant is not a pauper. Rule 6 prescribes that where the court sees no reason to reject the application, it shall fix a date for receiving evidence of his pauperism as well as evidence in disproof thereof. Rule 7 prescribes the procedure for hearing the petition and its sub-rule (3) lays down that the court shall then: either allow or refuse the applicant to sue as a pauper. Rule 8 reads as follows:

'WHEREthe application is granted, it shall be numbered and registered, and shall be deemed the plaint in the suit and the suit shall proceed in all other respects as a suit instituted in the ordinary manner, except that the plaintiff shall not be liable to pay any court-fee (other than fees payable for service of process) in respect of any petition, appointment of a pleader or other proceedings connected with the suit.'

Rule 9 contains the provisions for dispaupering the plaintiff on the grounds mentioned in the rule, inter alias if it appears that his means are such that he ought not continue to sue as a pauper. The other rules in the order make provision for realisation of the court-fees out of the decretal amount or from the plaintiff or the co-plaintiff.

(6) The scheme of the order, thereforee, shows that the plaintiff who wishes to sue in pauperis has to make an application to the court which after examination of the party and recording evidence, after notice to the Collector gives the finding if the petitioner is a pauper and then he is allowed to sue in pauperis. Rule 8 lays down that once these preliminaries are over, the petition shall be numbered and registered as a suit and it shall be deemed to be a plaint and the suit shall proceed in all other respects as a suit instituted in the ordinary manner. Consequently, after the suit has been registered and the plaintiff petitioner dies his legal representatives are to be brought on the record in accordance with the provisions of Order 22 of the Code. There i5 no provision of law requiring the exercise of determination of pauperism and leave to sue as a pauper over again either in respect of the same party or his legal representatives. It may not be forgotten that the court does not envisage any exemption in payment of court-fees altogether, but it only defers the realisation of the court-fees to a later stage of the suit. There is, thereforee, no jeopardy to the revenues of the State to realise the court-fees either from the subject matter of the suit decreed in favor of the party or from his person or other property. It is difficult to subscribe to the view that the legal representatives who really step into the shoes of the plaintiff petitioner and who have to prosecute the same suit which had been instituted by the deceased must be required to prove their pauperism again.

(7) There is, however, a specific provision contained in rule 9 of Order 33 which prescribes for dispaupering of the plaintiff. This provision of law equally well applies to the original plaintiff or his legal representatives substituted during the course of proceedings. In case the defendant or the Government Pleader applies to the court that any of the grounds specified in Rule 9 exists including the ground that the plaintiff has such means that he ought not to continue to sue as a pauper, then the court will enquire into the matter and dispauper the original plaintiff or his legal representatives substituted in the suit. But, this provision is certainly distinct from and not the same as the initial provision by which a petition to proceed in forma pauperis is converted into a suit which the law requires to be tried as an ordinary suit.

(8) Mr. Arya has relied upon Mandam Abdul Sattar Saheb v. H. Abdul Hakeem, : AIR1976AP85 . This is a decision of a single Judge of the High Court and the learned Judge has laid down that there is a distinction in the right to sue as pauper in between the executor or administrator brought on record as a legal representative, and an heir of the deceased pauper plaintiff brought on record as legal representative, and the principles that could be deduced are that the right to sue as a pauper was a personal right, which extinguishes with the death of the pauper plaintiff, Secondly, the legal representatives could be substituted for the deceased plaintiff in the ordinary course and if the heir of the deceased was brought on record as his legal representative he could continue the suit as pauper on fresh application if he had no sufficient means to pay the court-fees. If he had sufficient means, he could continue the suit on payment of court-fee, but this principle did not apply to the executor or administrator if brought on record as legal representative of the deceased pauper plaintiff and he could continue the proceedings as pauper irrespective of the fact whether he had sufficient means or not to pay the court-fee as in the case of a next friend or a guardian of a minor. Thirdly, the heir who was brought on record as legal representative of the deceased pauper-plaintiff could be dispaupered under Rule 9 if he came into possession of sufficient means to pay court-fee subsequent to the grant of leave to continue the proceedings as pauper. But the executor or the administrator would not be dispaupered even if he comes into possession, subsequently to the grant of such leave of sufficient means to pay the court-fee, and fourthly the executor or administrator who was permitted to continue the suit as legal representative of the deceased pauper-plaintiff could also be dispaupered if it was shown that he came into possession, in his character as legal representative and from out of the estate of the deceased, of sufficient means within the meaning of Order 33 Rule 9(b) as in the case of pauper-plaintiff.

(9) The aforesaid decision does not take into consideration Rule 8 of Order 33, which has directed the suit to proceed in all other respects as a suit instituted in the ordinary manner, once an order has been passed under sub-rule (3) of Rule 7 of Order 33 allowing the applicant to sue as a pauper and the petition has been converted into a plaint and registered as a suit. There is no provision of law express or implied for going through the exercise prescribed by Rules I to 7 of Order 33 every time a legal representative is brought on the record during the pendency of the suit. The initial right to sue with a pauper may be regarded as personal right, since only a person who is not possessed of sufficient means can be a pauper and he has to appear in person to satisfy the court of his pauperism. But after the permission has been granted the petitioner cannot be dispaupered except on the grounds mentioned in Rule 9 and surely his legal representatives cannot be called upon to prove their pauperism over again and also satisfy the court with regard to the matters specified in Rules 3, 4 and 5, which by their very nature pertain to the initial stage of the petition to sue in forma pauperis, but do not apply to a subsequent stage of the suit after it has been registered and no further leave is necessary to be obtained from the court to proceed with the suit in pauperis. There is no doubt that if the conditions specified in rule 9 are attracted, which include the possession of means by the party to pay the court-fees, then they apply as well to the original plaintiff as to the legal representatives and they may be dispaupered according to the procedure prescribed. But, I am of the view that the legal representatives cannot be required to prove initially that they are paupers before they are brought on the record or are allowed to continue the suit, and as prescribed by law the suit shall continue in all other respects as an ordinary suit, which must include the right of the legal representatives to continue the suit initially instituted without any impediment.

(10) I asked the counsel for the parties if this decision, (Mandam Abdul Sattar Saheb's case : AIR1976AP85 ) has been followed by any other court, but both the counsel submitted that there is no other decision on the point. My conclusion is, thereforee, as follows : (1) Where a petitioner applies to the court for permission to sue as a pauper and the permission has not yet been granted and the suit has not been registered and he dies, his legal representatives must show that they are also paupers before they can be allowed to sue in pauperis; (2) On the other hand, if the petitioner has been allowed .to sue in pauperis and his petition has been converted into a plaint and the suit has been numbered and registered and is proceeding, then on the death of the said party, the legal representatives are to be brought on the record in accordance with the provisions and principles laid down by Order 22 of the Code and if they are so substituted, it is not necessary for them to show that the legal representatives whether they are heirs or executor or administrator are also paupers. They will have a right to continue with the suit irrespective of their means; (3) It is, however, open to the defendant or the Government Pleader to make an application under Order 33 Rule 9 of the Code for dispaupering the party on the ground, inter alia, that the party has the means to pay the court- fees. Such an application can be made in respect of the legal representatives as well as the original party if the circumstances of the case so justify; and (4) The provisions for realisation of the court-fees contained in the Code apply to the legal representatives as much as they apply to the original party.

(11) In the instant case, an issue had been framed as to whether the legal representatives were themselves paupers and the same has been answered in their favor. The contention of the counsel for the petitioner, thereforee, does not arise in the facts and circumstances of the case. The court has found the respondents to be paupers and this satisfies the procedure prescribed by Rule 9 of Order 33 of the Code. The impugned order, consequently does not suffer from any jurisdictional error or any other legal infirmity. I agree with the reasoning and conclusion of the court and so the findings recorded by it do not call for interference. As a result, the revision is dismissed. Costs of the revision will abide by the result of the suit.


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