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S. Ramaswami Pillai Vs. Krishnamal - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in155Ind.Cas.317
AppellantS. Ramaswami Pillai
RespondentKrishnamal
Cases ReferredSubbiah Thevar v. Balasubramania Pandia Thevar. It
Excerpt:
civil procedure code (act v of 1908), section 115, order xxv, rule 1 - security for costs--order on application for security--revision, whether lies--order for security against pauper plaintiff--permissibility. - .....tinnevelly on i.a. no. 1267 of 1932 in o.s. no. 517 of 1932 refusing to order 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 february 5, 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 tiled on october 29, 1932, and issues were framed on november 3, 1932, and on that very day the petitioner (defendant) put in an application under order xxv, rule 1 (3), civil procedure code, for famishing security. it was returned on november 1, 1932, and represented on november 5, 1932. i append below the b. diary with regard to this,.....
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 to order 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 February 5, 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 tiled on October 29, 1932, and issues were framed on November 3, 1932, and on that very day the petitioner (defendant) put in an application under Order XXV, Rule 1 (3), Civil Procedure Code, for famishing security. It was returned on November 1, 1932, and represented on November 5, 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 February 2, 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. Section No. 17 of 1931 filed against that judgment. The petition was then adjourned to February 17, 1933. On February 17, 1933, it was adjournd to March 8, 1933, and on that day it was adjourned with the suit to April 7, 1933. On April 7, 1933, the suit was adjourned to June 13, 1933, and on that day, it was adjourned to June 24, 1933, as both sides were not ready. On June 24, 1933, it was adjourned to July 15, 1933, and on that day 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 March 8, 1933, in adjourning the petition with the suit and this went on until July 15, 1933, 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 the situation which was entirely of the Court's making. In Ramcoomar Coondoo v. Chunder Onti Mukerji 2 C. 233 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 XXV, Rule 1 (3). In Seshayyangar v. Jainulavadin 3 M. 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 Sastrigal v. Subramania Ayyar 17 M.L.J. 583 B.F. Saldanha v. Henry Hart 58 Ind. Cas. 734 : 43 M. 902 ; (1920) M.W.N. 534 : 12 L.W. 333 Subbiah Thevar v. Balasubramania Pandia Thevar. It is necessary, therefore, in considering whether this petition should have been allowed, to lock at the circumstances under which the suit was filed The defendant in the present suit bad 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, February 5, 1929, paid a sum of Rs. 1,000 to the defendant out of a sum of 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 non existent. This finding was confirmed on appeal. Admittedly, the suit sum said to have been deposited that day from the same fund has been made ever as a gift by the plaintiffs 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 affidavit 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 paras. 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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