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Sriranga Nacharammal Vs. Varalakshmi Fund (Vellore) Ltd., by Its Managing Director, V.S. Subramaniam Chettiar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 1408 of 1956
Judge
Reported inAIR1957Mad640
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 33, Rule 1
AppellantSriranga Nacharammal
RespondentVaralakshmi Fund (Vellore) Ltd., by Its Managing Director, V.S. Subramaniam Chettiar
Appellant AdvocateC.V. Nilakanta, Adv.
Respondent AdvocateB.C. Sheshachala Iyer and ;J. Nagarajan, Advs.
DispositionRevision allowed
Cases ReferredMt. Hafizan v. Abdul Karim
Excerpt:
.....procedure, 1908 - revision petition against order of subordinate judge directing petitioner to furnish security of certain sum as cost of suit - material irregularity in exercise of jurisdiction - in view of precedents very special ground should be required before suitor in forma pauperies is directed to give security for costs - special ground or circumstances not existing - order passed by court below liable to be set aside. - - , held in that case that the mere fact that a suit was not held to be bona fide at the initial stage could not be a ground for holding that the petitioners were liable to furnish security for costs, and that security for costs could be asked only under exceptional circumstances, that it should be the exception and not the rule, and that it must be..........fide claim against the deceased husband or against his estate inherited by the first defendant to claim maintenance as long as she remains a widow without having remarried.5. mr. seshachalam learned counsel for the respondent, contented that the learned subordinate judge was right in having directed the furnishing of security on the fact that this petitioner was just playing into the hands of the first respondent and therefore she was not entitled to continue the suit without furnishing security. i do not think i can agree with the argument of the learned counsel. the suit is not merely against the contesting respondent but is also against her step-son to enforce, her claim, which she is entitled to claim, under the document executed by her late husband. it cannot be held that the suit.....
Judgment:
ORDER

Basheer Ahmed Sayeed, J.

1. This civil revision petition is against the oArder of the learned Subordinate Judge of Vellore directing the petitioner to furnish security in the sum of Rs. 500 towards the cost of the suit. The petitioner sought leave to file the suit in forma pauperis and she was permitted to file the suit in forma pauperis and the suit was numbered. The suit' was one for maintenance and enforcement of a charge against the properties of her deceased husband. The husband is said to have executed in the year 1929 a deed under which he under took to pay a sum of Rs. 30 per month towards the maintenance for the first wife with whom he could not live amicably, and also a sum of Rs. 50 every year for her clothing. The petitioner is the first wife of the husband, and the husband married a second wife. On the occasion of the second marriage, this settlement appears to have taken place.

2. The case of the petitioner is that under this agreement which is a registered one, she was being paid maintenance until the death of the husband which took place in 1935. Thereafter these amounts of Rs. 30 per month and Rs. 50 per annum are said to have been paid by the step-son of the petitioner until the year 1944. In 1947 this step-son, who figures as the first defendant in the suit, mortgaged the properties to the 2nd defendant. Varalakshmi Fund at Vellore represented by its Managing Director for a sum of Rs. 5000.

The first defendant did not pay this mortgage debt and the second-defendant brought, a suit and obtained a decree. In execution of this decree the property was brought to sale and has since been purchased in auction by the 2nd defendant, the Fund, itself.

3. On an application made by the 2nd defendant-fund-calling upon the petitioner to furnish security for the suit to which the 2nd defendant is a party, the learned Subordinate Judge being of the opinion that the petitioner is a puppet in the hands of the 1st defendant, her step-son, directed that the petitioner should furnish security in the sum of Rs. 500. It is this order that is now being sought to be revised by the petitioner.

4. There is absolutely no rule prohibiting the court from directing a pauper plaintiff to furnish security in fit and proper cases. One such case was the subject-matter of a decision in Ramaswami Pillai v. Krishnammal, AIR 1935 Mad 230 (A). There it was held that since the plaintiff, who was permitted to sue the defendant in forma pauperis was merely a puppet in the hands of a relation of hers and that since the suit itself was not bona fide, the plaintiff was directed to furnish security. But so far as the present facts are concerned. I do not think that this decision would apply, because it cannot be said that the petitioner has no bona fide claim against the deceased husband or against his estate inherited by the first defendant to claim maintenance as long as she remains a widow without having remarried.

5. Mr. Seshachalam learned counsel for the respondent, contented that the learned Subordinate Judge was right in having directed the furnishing of security on the fact that this petitioner was just playing into the hands of the first respondent and therefore she was not entitled to continue the suit without furnishing security. I do not think I can agree with the argument of the learned counsel. The suit is not merely against the contesting respondent but is also against her step-son to enforce, her claim, which she is entitled to claim, under the document executed by her late husband. It cannot be held that the suit is mala fide. It may be that she kept quiet from the year 1944 right upto the time of the filing of the suit. But there is nothing that could be pitted against her by way of any bar of limitation or her rights being forfeited by reason of any circumstances that have arisen, since 1944.

Her case is that she has been asking the step-son to continue to pay her the maintenance as he was paying for 8 or 9 years after the death of the husband of the petitioner and that he with ulterior object, having already mortgaged the property, did not choose to honour the obligation undertaker, by his father. Having waited for a long time, the petitioner had perforce to seek her remedies in a court of law. Unless it be that she has lost her right by the law of limitation, it cannot be said that she cannot enforce her claim. The point whether she could claim against the estate of the deceased or against the step-son himself has yet to be decided in the suit.

6. Mr. Nilakantan appearing on behalf of the petitioner has however invited my attention to a decision in Maw Saw v. Maung Shew Gon, AIR 1923 Rang 244 (B), where it has been held that very special grounds should be required before a suitor in forma pauperis should be required to give security for costs and that it would be absurd to suggest that the fact that a relative was supposed to be assisting the appellant, would be such a ground. This decision followed the decision of this court in Seshayyangar v. Jainulavadin, ILR 3 Mad 66 (C).

Another decision relied upon by the learned counsel for the petitioner is Arumugam Chettlar v. Sevugan Chettiar : AIR1950Mad779 . Krishnaswami Nayudu J., held in that case that the mere fact that a suit was not held to be bona fide at the initial stage could not be a ground for holding that the petitioners were liable to furnish security for costs, and that security for costs could be asked only under exceptional circumstances, that it should be the exception and not the rule, and that it must be based upon some established principles, not on the mere circumstance that the court in its first impression finds a suit as not a bona fide suit. I am in entire agreement with this observation of Krishna-swami Nayudu J.

A similar decision relied upon by the learned counsel for the petitioner is the one in Mt. Hafizan v. Abdul Karim, 12 CWN. 163 (E). Referring to the provisions of Section 380, C. P. C., as it stood then, relating to the question of calling upon the pauper plaintiff to furnish security, the Bench of the Calcutta High Court observed:

'The provisions of Section 380, C. P. C. (old) cannot apply to the case of a person to whom permission has been granted under Section 410 of the Code, to sue as a pauper, as the effect of an or-der requiring such a person to furnish security for the defendant's costs would be to render nugatory the order under Section 410.'

I am also inclined to hold that having permitted the plaintiff to sue in forma pauperis and the suit having reached a stage of trial, at this stage to come to a prima facie decision that the suit is not bona fide and that the plaintiff should be called upon to furnish security is really negativing the permission granted earlier to the plaintiff to sue the defendants in forma pauperis. There are no very special circumstances thathave been established in this case to justify the court to call upon the petitioner to, furnish security.

The right of the plaintiff to maintenance under the registered deed that exists in her favour ought not to be defeated by an order like the one under revision. There should be a fair chance given to the plaintiff to establish her claim to maintenance from out of the estate of the deceased husband under the registered deed. It will be hard upon her to say that she could not get on with her case unless she furnishes security in the sum of Rs. 500 when already she has been held to be a pauper and having been given permission to file the suit. Though the lower court has exercised the jurisdiction vested in it, still, in my opinion, it has not been properly exercised and there is material irregularity in the exercise of the Jurisdiction, as it entails clear injustice and hardship to the party. I am, therefore, inclined to set aside the order of the learned Subordinate Judge. It is accordingly set aside and the suit will be allowed to foe proceeded with, the plaintiff furnishing no security. The Court will, however, expedite the disposal of the suit. There will be no order as to costs.


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