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S. Ramaswamia Pillai Vs. Krishnammal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1935Mad230; (1935)69MLJ38
AppellantS. Ramaswamia Pillai
RespondentKrishnammal
Cases Referred and Subbiah Thevar v. Balasubramania Pandia Thalavar
Excerpt:
- - if it were shown that the paupers were mere creatures in the hands of persons well able to find security, the order would not be improper......on i.a. no. 1267 of 1932 in o.s. no. 517 of 1932 refusing the order of the plaintiff in the suit to furnish security for costs. the plaintiff sued for a sum of rs. 2,569-6-6 alleged to have been deposited by her husband with the defendant under the pass-book, dated 5th february, 1929. it is alleged that this sum has been gifted to the plaintiff by her husband. the plaintiff was given leave to sue in forma pauperis. the plaint appears to have been filed on 29th october, 1932, and issues were framed on 3rd november, 1932, and on that very day the petitioner (defendant) put in an application under order 25, rule 1(3), civil procedure code, for furnishing security. it was returned on 4th november, 1932, and re-presented on 5th november, 1932. i append below the b diary with regard to.....
Judgment:

Pakenham Walsh, J.

1. This is a revision petition against the order of the District Munsif of Tinnevelly on I.A. No. 1267 of 1932 in O.S. No. 517 of 1932 refusing the order of the plaintiff in the suit to furnish security for costs. The plaintiff sued for a sum of Rs. 2,569-6-6 alleged to have been deposited by her husband with the defendant under the pass-book, dated 5th February, 1929. It is alleged that this sum has been gifted to the plaintiff by her husband. The plaintiff was given leave to sue in forma pauperis. The plaint appears to have been filed on 29th October, 1932, and issues were framed on 3rd November, 1932, and on that very day the petitioner (defendant) put in an application under Order 25, Rule 1(3), Civil Procedure Code, for furnishing security. It was returned on 4th November, 1932, and re-presented on 5th November, 1932. I append below the B diary with regard to this, which is important. It will be seen that the case was adjourned on several dates and that on 2nd February, 1933, the Court called for the judgment in O.S. No. 11 of 1930 on the file of the Court of the District Munsif of Tuticorin and the judgment and decree in A.S. No. 17 of 1931 filed against that judgment. The petition was then adjourned to 17th February, 1933. On 17th February, 1933, it was adjourned to 8th March, 1933, and on that day it was adjourned with the suit to 7th April, 1933. On 7th April, 1933, the suit was adjourned to 13th June, 1933, and on that day, it was adjourned to 24th June, 1933, as both sides were not ready. On 24th June, 1933, it was adjourned to 15th July, 1933, and on that clay the District Munsif passed the following order;

The suit itself is ready for trial, defendant has already incurred the costs. No useful purpose could be served by directing plaintiff to furnish security for costs at this stage. Petition dismissed. No costs.

2. It will be seen that the defendant put in this petition for security at the earliest possible opportunity and he has been diligent throughout in his prosecution. But the Court adopted an entirely wrong procedure after 8th March, 1933 in adjourning the petition with the suit and this went on until 15th July, 3.933, the date of the order when it proceeded to dismiss the petition on the ground that the suit itself was ready for trial, that the defendant had already incurred the costs, and that no useful purpose could be served by directing plaintiff to furnish security at that stage. This procedure was really calculated to defeat the whole object of the petition and the reason which the District Munsif gave for dismissing it, if correct, is due to situation which was entirely of the Court's making. In Ram Coomar Coondoo v. Chunder Canto Mookerjee I.L.R. (1876) 3 Mad. 66 , their Lordships of the Privy Council observed:

It is ordinary practice, if the plaintiff is suing for another, to require security for costs, and to stay the proceedings until it is given.

3. Although the District Munsif had sufficient material from which he could have formed a judgment as to the merits of the petition, he did not in fact dispose of the petition on merits at all. He dismissed it, as I observed above, on account of the alleged situation which, if correct, was entirely the Court's own making. There is no absolute rule that a pauper plaintiff cannot be asked to furnish security under Order 25, Rule 1(3). In Seshayyangar v. Jainulavadin I.L.R. (1880) 3 Mad. 66 (a decision of the Bench) it was laid down.

If it were shown that the paupers were mere creatures in the hands of persons well able to find security, the order would not be improper.

4. See also Srinivasa Sastrial v. Subramania Aiyar (1907) 17 M.L.J. 583, B.F. Saldanha v. Henry Hart I.L.R. (1920) 43 Mad. 902 and Subbiah Thevar v. Balasubramania Pandia Thalavar (1931) M.W.N. 1157 . It is necessary therefore, in considering whether this petition should have been allowed, to look at the circumstances under which the suit was filed. The defendant in the present suit had brought a suit against the plaintiff's husband to recover a sum of Rs. 1,575 odd. The defendant's husband in that case said that he had on the very day of the alleged deposit in the present case, namely, 5th February, 1929, paid a sum of Rs. 1,000 to the defendant out of a sum which he had realised in the execution of two decrees. He also produced a receipt for this sum. It was found that the receipt was not genuine and the fund out of which the alleged payment was made nonexistent. This finding was confirmed on appeal. Admittedly, the suit sum said to have been deposited that day from the same fund has been made over as a gift by the plaintiff's husband to the plaintiff and the allegation in the petition praying for security is that she is a mere puppet in the hands of her husband and that as the husband does not wish to pay the Government stamp duty nor to be mulcted with costs in case he fails he has put forward the plaintiff to sue in forma pauperis. These facts are fully set out in the petition asking for security. The plaintiff in her counter admitted that she had no property of any kind and that she had no means of furnishing security. As regards the specific facts set out in the petition about O.S. No. 11 of 1930 and A.S. No. 17 of 1931, the plaintiff simply says that the facts contained in paragraphs 5 to 8 are not true; she does not specifically challenge any particular fact therein stated. In my opinion, these circumstances are sufficient to show that she is bringing this suit for her husband and not bona fide on her own behalf.

5. The only question that then remains is whether this Court can interfere with the order as having been passed without jurisdiction or in irregular exercise of its jurisdiction. There is no doubt that, generally, an order requiring security under this section is entirely a matter of discretion with which the High Court would not interfere. But the present case is very peculiar because the learned District Munsif, instead of disposing of the application at once on its merits, adopted the wholly unjustifiable course of adjourning it together with the case, thereby defeating the very object of the petition and finally dealt with it not on its merits but, as I said before, dismissed it for something which, if true, is not the fault of the petitioner but is entirely due to the position created by the action of the Court itself. I consider this an irregularity in the exercise of his jurisdiction. It has been suggested that the petition should be sent back for disposal on the merits. But all the facts are before me. They are matters of documentary record and from the petition and the counter affidavit and from the Court having sent for the records in O.S. No. 11 and A.S. No. 17 it is clear that the lower Court itself knew of the evidence and therefore it will not be advisable if it be asked to pass an order on it and this course would cause further delay. Under these circumstances I will dispose of the matter myself. I think that the plaintiff should have been asked to furnish security for costs of the suit. The order of the lower Court is set aside and the plaintiff is hereby ordered to furnish security for costs in the sum of Rs. 200, to the satisfaction of the lower Court within one month from the date of receipt of this order. Otherwise her suit will stand dismissed with costs. The petition is allowed with costs in both Courts.


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