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K.C. Ibrahimkutty Mathar Vs. Josephine and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberC.R.P. 789 of 1963
Judge
Reported inAIR1965Ker98
ActsCode of Civil Procedure (CPC) , 1908 - Order 33, Rule 1
AppellantK.C. Ibrahimkutty Mathar
RespondentJosephine and ors.
Appellant Advocate A.S. Krishna Iyer and; A.K. Ramaseshadrinathan, Advs.
Respondent Advocate K.A. Subramonian and; M. Prabha, Advs.
DispositionRevision partly allowed
Cases ReferredVellingiri Naicker v. Sree Patteswaraswami Devasthanam
Excerpt:
- .....in a representative capacity the question of pauperism shall be determined with reference to the means possessed by him in such capacity on the second question the court below found that section 92? of the code of civil procedure was not a bar to that suit as the suit was not one for the administration of any trust. the court below therefore held that there was no substance in any of the objections raised by the 4th counter-petitioner and allowed the application for permission to sue in forma pauperis. the 4th defendant has filed this revision petition challenging the validity of the order passed by the court below.4. mr. a. s. krishna iyer, appearing for the petitioner submitted that the order of the court below was illegal as the synagogue was possessed of sufficient means to pay the.....
Judgment:

Mathew, J.

1. This revision petition is filed against the order of the Court below granting permission to the plaintiff to sue in forma pauperis. The suit was to set aside a sale deed, of the properties belonging to the Ernakulam Kadavumbhagom Jewish. Synagogue. The plaintiff is a member of the congregation of the Synagogue, and according to the finding of the court below, he was not possessed of sufficient means in his Individual capacity to pay the court-fee and was also not in possession of any assets belonging to the Synagogue which would enable him to pay the Court-fee.

2. The application was opposed by the 4th counter-petitioner. He contended that the application was not maintainable on the ground that the Jewish Synagogue which the plaintiff represented for the purpose of the suit, was in possession of means to pay the Court-fee, that the petitioner, in his individual capacity was also possessed of sufficient means to pay the court-fee and that the suit was barred under Section 92 of the Code of Civil Procedure.

3. The Court below found that the plaintiff in his Individual capacity was not possessed of means to pay the Court-fee. It also found that the Synagogue was possessed of sufficient properties which would enable it to pay the Court-fee, but it held that that would not preclude the plaintiff from instituting the suit as pauper. In arriving at this conclusion the court below considered the scope of Explanation (ii) to Order 33 Rule 1 which states, that where a plaintiff sues in a representative capacity the question of pauperism shall be determined with reference to the means possessed by him in such capacity On the second question the court below found that Section 92? of the Code of Civil Procedure was not a bar to that suit as the suit was not one for the administration of any trust. The court below therefore held that there was no substance in any of the objections raised by the 4th counter-petitioner and allowed the application for permission to sue in forma pauperis. The 4th defendant has filed this revision petition challenging the validity of the order passed by the Court below.

4. Mr. A. S. Krishna Iyer, appearing for the Petitioner submitted that the order of the Court below was Illegal as the Synagogue was possessed of sufficient means to pay the court-fee, that the suit by the plaintiff was in a representative capacity, and that he ought not be allowed to sue as a pauper. As we have already said, the plain-tiff has filed the suit as a member of the Jewish congregation and the suit is to set aside a sale deed executed on behalf of the Synagogue in favour of the 4th counter-petitioner. He challenges the validity of the sale deed on several grounds. It is not necessary to state the grounds on which he seeks to set aside the sate for disposing of this revision petition. The main prayer in the plaint is for recovery of possession of the property and for delivery of the same to the Synagogue. It is stated in the plaint that the plaintiff is instituting the suit on behalf of the Synagogue and as a member thereof. This statement in the plaint does not mean that the plaintiff is suing in a representative capacity within the meaning of the Explanation referred to above. A more or less similar question came up for consideration in Usman v. Simon, 1959 Ker LT 276 : (AIR 1959 Ker 218). There the suit was filed by a member of the Jewish Synagogue at Parur, and it was for setting aside a sale deed executed by the trustee or administrator of the Synagogue. Kumara Pillai J., after an elaborate consideration of the case law on the point, came to the conclusion that when a person sues in a representative capacity he is entitled to sue in forma pauperis if he is not in possession of properties or funds belonging to the institution or group of persons on whose behalf he files the suit, which would enable him to pay the court-fee. It may be observed that this ruling was rendered before Explanation (ii) to Order 33 Rule 1 was added to the Code of Civil Procedure by the High Courtof Kerala

5. On going through the; allegations in the plaint and considering the capacity in which the suit is filed, we do not think that the plaintiff is suing in a representative character. We are of opinion that the nature of the suit is more the same as the one considered in the ruling reported in Pachamuthu Nadar v. Naga Piliai, AIR 1951 Mad 295. In that case an application for leave to sue in forma pauperis was filed by some of the relators of a temple seeking to recover property on behalf of the temple and for possession to be delivered over to the defaulting trustees who had not taken steps to get the property from alienees. It was found that the relators were paupers individually. The question was whether the fact that the other worshippers in the temple were possessed of sufficient means would preclude the petitioners from filing the suit En forma pauperis. Govinda Menon J., distinguished the decision of Rajamannar J,, in Vellingiri Naicker v. Sree Patteswaraswami Devasthanam, AIR 1949 Mad 714 and held that the petitioners were entitled to sue in forma pauperis. He said:

'The petitioners-respondents are relators and in their individual capacity they are entitled, as of right, to bring a suit for the recovery of temple properties possession of which has to be given over to the trustees who had defaulted in filing the suit. It is an individual right and if the petitioners-respondents are individually paupers they are entitled to file the suit in forma pauperis. The question whether other worshippers of the temple are multimillionaires, or could pay the court-fee, would not disentitle the petitioners-respondents from filing the suit'. We think that in this case the plaintiff has filed the suit in his individual capacity to enforce an individual right. There is also no proof that he is in possession of any means in any representative capacity. We therefore hold that the court below was right in its conclusion that the plaintiff was entitled to file the suit in forma pauperis.

6. Mr. Krishna Iyer argued that the finding of the lower court on the question of the maintainability of the suit without obtaining the permission of the Advocate General under Section 92 of the Code of Civil Procedure is wrong and has to be reconsidered. We agree that the lower court has not bestowed on the question that much of consideration which it deserved. Therefore we would direct the court below to frame an issue to cover this contention and dispose 'It of along with the other issues arising for consideration in the suit.

7. The Civil Revision Petition is disposed of as above. We make no order as to costs.


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