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Narasinga Shenoi Vs. Madhava Prabhu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. No. 502 of 1958
Judge
Reported inAIR1960Ker45
ActsCode of Civil Procedure (CPC) , 1908 - Order 25, Rule 1
AppellantNarasinga Shenoi
RespondentMadhava Prabhu and ors.
Appellant Advocate T.S. Venkiteswara Iyer and; R.C. Plappilly, Advs.
Respondent Advocate T.S. Krishnamurthy Iyer, Adv. for Respondent 1 and 2
DispositionRevision dismissed
Cases ReferredCowell v. Tayldr
Excerpt:
- - there is an exception in the case of appeals but there the appellant has bad the benefit of a deci-sion by one of her majesty's courts, and so an insolvent party is not excluded from the courts but only prevented, if he cannot find securiy, from dragging his opponent from one court to another. ' the principles enunciated in this passage can, in my opinion if i may say so with respect, he adopted as a safe guide for the exercise of the discretion vested in the court by the first paragraph of order xxv, rule (1), of the code of civil procedure......passed under order xxv, rule 1, code of civil procedure, calling upon the plaintiff to furnish security for costs of the defendants. plaintiff has admittedly no property and he has also filed an insolvency petition. the defendants' application under order xxv, rule i. c. p. c. to order the plaintiff to furnish security for was opposed by the plaintiff on the groundsthat the mere fact of his poverty was not sufficient for calling upon him to furnish security for costs and that as the suit was filed by him on behalf of the samajam and the samajam was possessed ot properties order xxv rule 1 could have no application to this case at all. 2. order xxv r, 1, code of civil procedure, reads as follows: 'i. (i) at any sage of a suit, the court may either of its own motion or on the.....
Judgment:
ORDER

Kumara Pillai, J.

1. This is a petition to revise an order of the District Munsiff of Crangannore, passed under Order XXV, Rule 1, Code of Civil Procedure, calling upon the plaintiff to furnish security for costs of the defendants. Plaintiff has admittedly no property and he has also filed an insolvency petition. The defendants' application under Order XXV, Rule I. C. P. C. to order the plaintiff to furnish security for was opposed by the plaintiff on the groundsthat the mere fact of his poverty was not sufficient for calling upon him to furnish security for costs and that as the suit was filed by him on behalf of the Samajam and the Samajam was possessed ot properties Order XXV Rule 1 could have no application to this case at all.

2. Order XXV R, 1, Code of Civil Procedure, reads as follows:

'I. (I) At any sage of a suit, the court may either of its own motion or on the application of any defendant, order the plaintiff, for reasons to be recorded, to give within the time fixed by in security for the payment of all costs incurred and likely to be incurred by any defendant:

Provided that such an order shall he made in all cases in which it appears to the court that a sole plaintiff is, or (when there arc more plaintiffs than one) that all the plaintiffs arc, residing out of India and that such plaintiff does not possess or that no one of such plaintiffs possesses any sufficient immovable property within India other than the property in suit.

2. Whoever leaves India under such circumstances as to afford reasonable probability that he will not be forthcoming whenever he may be called upon to pay costs shall be deemed to be residing out of India within the meaning of the proviso to sub-rule CD.'

It is common ground that neither clause (2) nor tiie proviso to clause (1), both of which make it obligatory on the part of the court to call upon the plaintiff to furnish security applies to this case, Under the first paragraph of sub-clause (I) the court has a discretion to decide wheher the plaintiff should he called upon to furnish security or not, and the only question for decision is whether that discretion has been properly exercised in this case.

3. It was contended on behalf of the revision petitioner that the real plaintiff in this case is the Samajam and not the person who has filed the plaint and the Samajnm being possessed of properlies there is no ground for calling upon the plaintiff to furnish security, and that even if it is considered that the real plaintiff is not the Samajam but the person who has filed the plaint his poverty is not a ground for calling upon him to furnish security as he has filed the suit merely to protect the interests of the Samajam.

4. The Samajam is not co nomine the plaintiff in the suit. The plaintiff eonomine is the revision petitioner and what he has asked in the plaint is for a decree to be given to him for recovering, on behalf of the Samajam, the amounts said to be due to it. He is not the person entitled under the bye laws of the Samajam to bring the suit on its behalf, It is only by virtue of his right as a mere member of the Samajam that the suit has been brought. Admittedly the Samajam possesses properties, and there are many members in it some of whom also admittedly possess properties. And yet the suit, which it is alleged has been filed on behalf of the Somajam, has been brought by an insolvent. In these circumstances, if the suit has been brought with the authority or the consent of the Samajam or of the majority of its members, there is every reason to suspect that ihe insolvent has been made to the the suit in order to enable the Samajam to escape the liability for cost if the suit is dismissed.

5. Bowpn, L. T., has observed in Cowell v. Tayldr (1880) 31 Ch D 34:

'The general rule is that poverty is no bar to a litigant that, from time immemorial has been the rule at common law, and also, I believe, in equity. There is an exception in the case of appeals but there the appellant has bad the benefit of a deci-sion by one of Her Majesty's Courts, and So an insolvent party is not excluded from the courts but only prevented, if he cannot find securiy, from dragging his opponent from one court to another. There is also an exception introduced in order to prevent abuse that it an insolvent sues as nominal plaintiff for the benefit of somebody else, he must give security.'

The principles enunciated in this passage can, in my opinion if I may say so with respect, he adopted as a safe guide for the exercise of the discretion vested in the court by the first paragraph of Order XXV, Rule (1), of the Code of Civil Procedure.

6. In the present case, the revision petitioneris only a nominal plaintiff, the real plaintiff i. e.the Samajam is possessed of properties and neitherthe Samajam as such nor any member thereofwho is possessed of properties has come forward toFile the suit. In the circumstances, this is a casein which lo prevent abuse, it is necessary to call,upon the insolvent, suing as nominal plaintiff forthe benefit of the Samajam, to give security. The(exercise of the discretion by the lower court therefore cannot be said to he improper. The order ofthe lower court is, therefore, confirmed, and therevision petition is dismissed with costs.


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