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Khajah Assenoollajoo Vs. Solomon and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1887)ILR14Cal533
AppellantKhajah Assenoollajoo
RespondentSolomon and anr.
Cases ReferredRam Coomar Koondoo v. Chunder Canto Mookerjee. There Sir Montague Smith
Excerpt:
security for costs - poverty--speculative suit. - .....i.l.r. 2 calc. 259:it is the ordinary practice, if the plaintiff is suing for another, to require security for costs, and to stay proceedings until it is given. the now plaintiffs were fully aware, during the pendency of the former suit, of the arrangement between the mcqueens and the defendant, but instead of applying for security for costs, they petitioned the court to make him a co-plaintiff under section 73 of act viii.' and later on in the judgment he says: 'it has been a misfortune to the plaintiffs that security was not obtained for the costs in the course of the former suit.14. these observations were not necessary for the purpose of the decision, but i take it that there can be no doubt, apart from that decision, that this court has power to require security for costs, if it.....
Judgment:
ORDER

Trevelyan, J.

1. In this application the defendant seeks to compel the plaintiff to give security for the costs of this suit.

2. The first ground is that he does not reside in British India.

3. Although he is a native of Cashmere, he seems to have been for some time resident in British India, and it does not appear that he has been out of British India for a long time. This ground, I think, clearly fails.

4. The other ground is that he has disposed of a portion of his interest in the suit, that he is a pauper, and that the suit is a speculative one brought at the instance of and for the benefit of others.

5. There are a good many matters alleged which go to the merits of the suit, and to which I need not refer in dealing with this application.

6. In the 43rd paragraph of his affidavit Mahomed Ghouse states that in the year 1882 the plaintiff entered into an agreement with one Abdoor Rohim and others for the purpose of obtaining from them advances from time to time in order to carry on a suit referred to in that affidavit, and to meet his personal expenses during the pendency of the said suit and as remuneration for such advances he assigned over to Abdoor Rohim and others a moiety of all his claims in such suit, and of all property that he might recover under the decree in that suit. The plaintiff admits this agreement, and states that he owes Rs. 700 under it.

7. It is then alleged that on the 11th of December, 1883, the plaintiff entered into a fresh agreement of a similar nature with Aga Hossein Ali, Aga Ekram Ali, and Gobind Chunder Das, and that on the 21st of April, 1884, a mortgage was executed in favour of those persons.

8. The plaintiff admits this agreement and mortgage, but points out that he has still got a seven-anna interest in the estate, the subject-matter of this suit.

9. The 46th paragraph of Mahomed Gouae's affidavit contains an allegation which is denied and is unsupported. I do not think I can act upon it.

10. The 47th paragraph states that the plaintiff's landlord had to institute against him three suits, for small sums of rent.

11. The plaintiff states that he has satisfied these decrees, but [836] he does not state when he satisfied them. As he satisfied another suitor rent, which is referred to in the 48th paragraph of Mahomed Goase's affidavit, after notice of this application had been given, in all probability he satisfied the three decrees also after notice had been given.

12. It appears from the affidavit of Mahomed Cause that the defendant has been unable to realize from the plaintiff the costs of an interlocutory application which he was directed to pay.

13. There is no doubt, I think, that the plaintiff is a poor man, probably without any means at all, and that he is being assisted by others in obtaining funds for the purpose of carrying on this litigation. and that he has parted with a portion of his interest. I do not think that the case goes further than this. Mr. Bonnerjee for the defendant relied on some observations made by the learned Judge who delivered the judgment of the Privy Council in the well-known case of Ram Coomar Koondoo v. Chunder Canto Mookerjee. There Sir Montague Smith says I.L.R. 2 Calc. 259:

It is the ordinary practice, if the plaintiff is suing for another, to require security for costs, and to stay proceedings until it is given. The now plaintiffs were fully aware, during the pendency of the former suit, of the arrangement between the McQueens and the defendant, but instead of applying for security for costs, they petitioned the Court to make him a co-plaintiff under Section 73 of Act VIII.' And later on in the judgment he says: 'It has been a misfortune to the plaintiffs that security was not obtained for the costs in the course of the former suit.

14. These observations were not necessary for the purpose of the decision, but I take it that there can be no doubt, apart from that decision, that this Court has power to require security for costs, if it finds that the plaintiff is not the real litigant, but that he is only a puppet in the hands of others. Sir Montague Smith did not, as I understand him, intend to apply to this country any principle in this matter different from that adopted by the Courts in England. As I understand the English decisions the Courts do not require security, because the plaintiff is a pauper or because he is a mere trustee, but they do require security when they find that he is not the real litigant. As Sir Montague Smith puts it, if the plaintiff is suing for another, security is required.

16. The real question is whether the plaintiff is suing for himself or for another. In this case the plaintiff has a substantial interest in the suit, and, as far as I can see, the suit has been instituted by him on his own behalf. I must on the affidavits find this as a fact, and I must hold that this suit is really the plaintiff's suit, and that his name is not used by others for their own purposes. He is, I think, suing for himself and not for any one else.

17. The application must be dismissed with costs.


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