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Arumugam Chettiar (Minor) and anr. Vs. K.R.S. Sevugan Chettiar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 789 of 1949
Judge
Reported inAIR1950Mad779; (1950)IIMLJ159
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 25, Rule 1
AppellantArumugam Chettiar (Minor) and anr.
RespondentK.R.S. Sevugan Chettiar and anr.
Appellant AdvocateG. Jagadisa Iyer, Adv.
Respondent AdvocateR. Rangaswami Iyengar, Adv.
DispositionPetition allowed
Cases ReferredChanrai Valiram v. The Sunday Times
Excerpt:
.....the petitioner's mother was aware of it would be a circumstance in holding that the suit is not a bona fide one, even assuming that the suit is not bona fide suit is it open at this stage when parties have not gone to trial to consider whether the suit is bona fide or not? obviously this is not a case coming under order 25, rule l, and it is not a case where such exceptional circumstances have been alleged or proved in order to invoke the inherent power of the court provided for under section 151, though, as i have already observed, section 151 should not ordinarily be invoked, when a specific provision in the code is available for the parties to rely upon for any suitable reliefs. when a court finds that a suit is not bona fide in the sense that it is false or vexatious, and when it is..........to furnish security for the costs of the suit, apparently on the ground that the suit was not a bona fide suit. the learned judge agreeing with the contentions of the respondents directed the petitioners to furnish security for costs incurred and likely to be incurred by the respondents. against this order the present revision petition is filed.3. the learned judge placed reliance on the fact that the petitioner's mother was fully aware of the partition, and that in spite of that knowledge, not a word about the partition deed was mentioned in the plaint, and that even after the respondents filed their written statement, no reply statement was filed regarding the partition, and that therefore the suit could not be said to be a bona fide suit. on the sole ground that the suit wag not a.....
Judgment:
ORDER

Krishnaswami Nayudu, J.

1. This revision petition is against the order of the Subordinate Judge of Davakottai directing the petitioner to furnish security for costs of the suit. The petitioners claimed to be the illegitimate sons of one Karuppan Chettiar and instituted a suit for partition of the properties of Karuppan Chettiar claiming a share as the offspring of his continuously kept concubine. The parties are Sudras. The defendants are the sons of Karuppan Chettiar who resisted the suit on several grounds. The suit was instituted in forma pauperis, and the properties were valued at nearly Rs. 3 lakhs. Karuppan Chettiar died before the suit, and sometime before his death the petitioners' mother obtained an order from a Magistrate for maintenance on the footing that the petitioners were the children and that she, their mother, was the lawful wife of Karuppan Chettiar. Thereupon Karuppan Chettiar filed a suit for a declaration that the petitioners' mother was not his legally wedded wife; and that suit was decided in favour of Karuppan Chettiar in about August 1943. In the present suit, O. S. No. 147 of 1948, on the file of the Sub-Court, Devakottai the respondents relied upon a registered partition deed dated 4th February 1943 and alleged that Karuppan Chettiar became divided from them under that document and that the petitioners were made aware of the existence of the partition deed by notice sent to them as early as 29th November 1943, that the fact of partition was also made clear in certain proceedings taken by the mother of the petitioners in execution for recovery of the maintenance ordered by the Magistrate, and that the plaintiff's mother was fully aware of the partition claim set up by the respondents.

2. The respondents applied in I. A. No. 274 of 1949 under Order. 26, Rule l and Section 151, Civil P. C., directing the petitioners to furnish security for the costs of the suit, apparently on the ground that the suit was not a bona fide suit. The learned Judge agreeing with the contentions of the respondents directed the petitioners to furnish security for costs incurred and likely to be incurred by the respondents. Against this order the present revision petition is filed.

3. The learned Judge placed reliance on the fact that the petitioner's mother was fully aware of the partition, and that in spite of that knowledge, not a word about the partition deed was mentioned in the plaint, and that even after the respondents filed their written statement, no reply statement was filed regarding the partition, and that therefore the suit could not be said to be a bona fide suit. On the sole ground that the suit wag not a bona fide suit, the learned Judge held that he was entitled under Section 161, Civil P. C., to exercise the inherent powers vested in the Court and directed security to be furnished relying upon a decision in Chanrai Valiram v. Sunday Times Ltd., A.I.R. 1932 Sind 33 : 26 S. L. R. 21.

4. It is contended on behalf of the petitioners that security for costs can only be awarded for the reasons and circumstances mentioned in Order 25, Rule 1, and not on other grounds, and that in any event Section 151 cannot be invoked in an application of this nature. Learned counsel cited Bhairabendra Narain Deb v. Udai Narain Deb : AIR1924Cal251 in support of his contention Cuming J. with reference to the facts of that case which do not strictly come within the purview of Order 25, Rule 1 observes as follows :

'With great respect it seems to me that it is very doubtful if the inherent power of the Court can be called in aid in the present case. Had the Code been entirely silent on the point, then possibly the inherent power of the Court might have been invoked, but when the Code does make certain provisions for the taking of security for costs from the plaintiff, it seems to me that in those cases and those eases only may costs be taken from the plaintiff and that for security for costs to be demanded from the plaintiff the case must fall within the purview of Order 25, Rule 1.'

I am inclined to agree with these observations of the learned Judge, since the power given under Section 151 can be invoked ordinarily only in cases where there is no specific provision made regarding any matter. In view of the fact that security for costs has been specifically dealt with under Order 25, Rule 1, which Courts can order under the grounds and circumstances mentioned in that rule, it is not open ordinarily for Courts to invoke Section 151, Civil P. C., and direct security for costs to be furnished.

5. The ground on which the security for costs has been ordered by the learned Subordinate Judge is that the suit is not a bona-fide suit. The question is, how far the failure of the petitioners to file a reply statement to the allegations made the respondents in their written statement that there was a partition deed and the petitioner's mother was aware of it would be a circumstance in holding that the suit is not a bona fide one, Even assuming that the suit is not bona fide suit is it open at this stage when parties have not gone to trial to consider whether the suit is bona fide or not? In my opinion, it was too early, for the lower Court to consider the bona fides of the suit before hearing the plaintiffs and the evidence which they would place before the Court to substantiate their claims. Obviously this is not a case coming under Order 25, Rule l, and it is not a case where such exceptional circumstances have been alleged or proved in order to invoke the inherent power of the Court provided for under Section 151, though, as I have already observed, Section 151 should not ordinarily be invoked, when a specific provision in the Code is available for the parties to rely upon for any suitable reliefs. It is not as if the Code does not contain any provision to penalise a party in such circumstances. When a Court finds that a suit is not bona fide in the sense that it is false or vexatious, and when it is satisfied that the claim or defence is false or vexatious to the knowledge of the party by whom it has been put forward, the Court is entitled, under the provisons of Section 35A, Civil P. C. to make an order for payment of cost by way of compensation in addition to the costs ordinarily allowable in such cases. The Judicial Commissioner of Sind in Chanrai Valiram v. The Sunday Times, A. I. R. 1932 Sind. 33: 26 S. L. R. 21, takes a different view; but it may be pointed out that it was a case where he resorted to the inherent power under the peculiar circumstances of the case, and where he held that the plaintiff was a mere nominal plaintiff and was carrying on litigation for the sole benefit of another person. That is however not the case here, and the latest amendment of Order 25, Rule l by the addition of Sub-rule 4 brings in which an element of champerty or maintenance is proved within the purview of Order 25, Rule 1 to entitle a Court to direct security for costs if it is satisfied that such an element is present in the litigation before it. There sent case is not a suit of that kind. The mere fact that a suit is not held to be bona fide at the initial stage could not be a ground to hold that the petitioners are liable to furnish security for costs. Security for costs can be asked only under exceptional circumstances, and it should be the exception and not the rule, and 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.

6. The order of the lower Court is therefore erroneous and the learned Judge has acted with material irregularity in the exercise of his jurisdiction. The order is set aside, and the revision petition is allowed with costs.


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