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Ambalathilakath Kuttoossa and anr. Vs. Mundayatan Korothveettil Kunhamma and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1938Mad380; (1938)1MLJ142
AppellantAmbalathilakath Kuttoossa and anr.
RespondentMundayatan Korothveettil Kunhamma and ors.
Cases ReferredIn Hood Barrs v. Heriot
Excerpt:
- - the proposition is well established that the appellant's poverty by itself would not be sufficient to warrant his being required to furnish security. where the appeal raises grave issues which vitally affect the appellants' position, the court may well refuse to make an order, which will have the effect of stifling the appeal, although circumstances may exist which normally would justify an order for security. this assertion seems to be well founded and furnishes further evidence of the mala fides of the plaintiffs......a letters patent appeal from an order of a learned judge of this court refusing an application for security for costs in a pending first appeal. the learned judge bases his order on three grounds:(1) that there was delay in applying;(2) that the application was not bona fide; and(3) that the effect of granting the application would be to stifle the appeal. we regret we are unable to uphold the learned judge's view.2. we should be reluctant to interfere in a matter of this sort, but for the fact, that the case raises certain questions of principle, in regard to the exercise of the court's discretion, when security is demanded from an appellant. the proposition is well established that the appellant's poverty by itself would not be sufficient to warrant his being required to furnish.....
Judgment:

Venkatasubba Rao, J.

1. This is a Letters Patent Appeal from an order of a learned Judge of this Court refusing an application for security for costs in a pending first appeal. The learned Judge bases his order on three grounds:

(1) that there was delay in applying;

(2) that the application was not bona fide; and

(3) that the effect of granting the application would be to stifle the appeal. We regret we are unable to uphold the learned Judge's view.

2. We should be reluctant to interfere in a matter of this sort, but for the fact, that the case raises certain questions of principle, in regard to the exercise of the Court's discretion, when security is demanded from an appellant. The proposition is well established that the appellant's poverty by itself would not be sufficient to warrant his being required to furnish security. That has not been seriously disputed here, but surely that does not mean that the appellant can rely upon his own poverty, as being an important or decisive factor, and resist the application on that ground Konammal v. Jadaya Goundan (1922) 17 L.W. 26. The suit has been brought by certain members of a tarwad to set aside the alienations made by the karnavan, who has been impleaded as the first defendant. The lower Court has found that the properties alienated were the self-acquisitions of the karnavan and that the case set up by the plaintiffs that they belonged to the tarwad, is false. The effect of the judgment is, that the suit is a vexatious one, and we wish to observe that had the matter stopped there, we should probably have hesitated to interfere with the order under appeal. But the Subordinate Judge goes on to point out that it was the first defendant, the alienor, that was in fact conducting the suit. He observes:

I have closely watched his (the first defendant's) examination and' cross-examination and I am convinced beyond doubt that his evidence is all stage-managed.... I have little doubt that he is practically engineering the whole suit.

3. In the affidavit filed in support of the application, it is alleged that the plaintiffs are paupers and that the first defendant is the person financing and conducting the litigation. This very important assertion remains uncontradicted.

4. True, every order for security passed, not complied with, has the effect of stifling the appeal. Does it follow from this that a pauper appellant can successfully resist the application-by relying upon his own poverty? To hold so would be to frustrate the very object of the provision. In Hood Barrs v. Heriot (1896) 2 Q.B. 375 Lord Esher lays down, if we may say so with respect, what may be regarded a very sound principle. Where the liberty of the appellant is in question or where highly penal, consequences will be entailed upon him by the order appealed1 against, the Court as a general rule will refuse to order security for costs; that seems to be the true doctrine. Where the appeal raises grave issues which vitally affect the appellants' position, the Court may well refuse to make an order, which will have the effect of stifling the appeal, although circumstances may exist which normally would justify an order for security. But here the facts are just the other way; not only is the position of the appellants not jeopardised but the suit they brought, as the lower Court points out, is of a harassing and vexatious character. No Court will regard with sympathy the argument that the order for security will have the effect of putting an end to a litigation of that sort.

5. Is there any ground for the contention that the application was not bona fide? In the lower Court costs amounting to about Rs. 100 were ordered. Execution was taken out and the crop on the land belonging to some of the plaintiffs was attached. Immediately thereafter the land was fraudulently assigned away to a third party and was thus put beyond the reach of the creditor. Another plaintiff was arrested, who forthwith sought the protection of the Insolvency Court. The net result is that about a moiety of the costs was realised and the sum now remaining due with interest and further expenses incurred, amounts to more than Rs. 100. These facts, far from showing that the application was mala fide, indicate a wilful determination on the plaintiffs' part to withhold the payment of the costs already ordered. There were several defendants to the action, there having been several alienees. There was a similar application for security made by one of them, which was granted and the order not having been complied with, the appeal has already been partially dismissed. These facts show that there were circumstances in addition to the appellant's poverty, on which the application was based.

6. There is yet another matter which shows how mala fide the conduct of the plaintiffs has been. Of the several plaintiffs that brought the action, four alone were adult males. Of these four, one only figures as the appellant, while the remaining three have conveniently been impleaded as respondents. In the affidavit filed in support of the application, it is stated (this has not been denied) that this device was employed for the purpose of defeating any order for costs that may be made in the appeal. This assertion seems to be well founded and furnishes further evidence of the mala fides of the plaintiffs.

7. Lastly remains the question of delay. The proposition that the respondent should be prompt in applying for security does not admit of doubt. But here the very occasion for the application is the non-recovery of the costs ordered by the lower Court. Steps had to be taken and were being taken for recovering those costs and the application was deferred till it was definitely found that those costs could not be recovered. We are not prepared to hold that there has been, having regard to the circumstances, such delay as to deprive the applicants of their remedy under the provision.

8. We direct that the appellants in the first appeal shall furnish security in the sum of Rs. 300 (Rs. 100 representing the costs in the lower Court and Rs. 200 the costs here) to the satisfaction of the lower Court within two months from this date. In default, Appeal No. 292 of 1934 will stand dismissed with costs as against respondents 9 and 10 in the appeal (the appellants in Letters Patent Appeal).

9. In this Letters Patent Appeal we make no order as to costs.


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