Madras High Court
K. Balakumar vs M.S. Jayaprakash And Ors. on 9 October, 1995
Equivalent citations: (1996)1MLJ9
ORDER Rengasamy, J.
1. This appeal is against the order of the 10th Assistant Judge, City Civil Court, Madras, in O.P. No. 192 of 1975, dismissing the petition seeking permission to file the suit as an indigent person.
2. The appellant's mother by name Narasammal, filed the petition seeking permission to file the suit as an indigent person. The learned 10th Assistant Judge, City Civil Court, Madras, dismissed the petition, against which a revision was filed in this Court and this Court allowing the revision, remanded the matter for fresh consideration. During the pendency of this petition for enquiry, the appellant's mother Narasammal died and the appellant herein got impleaded himself as the legal heir of the said Narasammal. He continued this petition under Order 33, Rule 1, Code of Civil Procedure as legal heir of his mother seeking permission to file the suit without payment of the court-fee. The 10th Assistant Judge, City Civil Court, has dismissed the petition holding that as this petition was filed by the appellant's mother to permit her to file the suit as an indigent person, after her death, the relief sought for by her, which is personal, came to an end, that the appellant herein did not file a separate petition seeking permission to file the suit as an indigent person or amend the petition to describe himself as an indigent person and therefore, this petition was not maintainable.
3. The learned Counsel appearing for the appellant Mr. Raghavachari, contended that when the original petition was filed with a prayer to permit the petitioner Narasammal as an indigent person, the suit also is deemed to have been instituted on that day, that though Narasammal died, her legal heir is entitled to continue the suit, that, therefore, no separate petition is required under Order 33, Rule 1, Code of Civil Procedure seeking permission by the legal heir to permit him to file the suit as an indigent person as the suit was already instituted by the original plaintiff Narasammal, that as the Court has no find out whether Narasammal, the original plaintiff, was an indigent person at the time of filing of the suit, there is no necessity to file a petition by this appellant, who is the legal representative of the deceased, or amend the plaint describing the appellant herein as an indigent person and therefore the order of the court below has to be set aside.
4. The learned Counsel for the appellant cited a decision of the Apex Court in Vijay Pratap v. Dukh Haran Nath , has held that the application to sue in forma pauperis by the applicant is not personal to himself. Even though such is the observation of the Supreme Court, it has not laid down the rule that the legal heir of the deceased applicant is entitled to continue the same application without a prayer for permission to treat him as an indigent person. In the case before the Supreme Court, a minor filed the petition seeking permission to file the suit as an indigent person, but the court found that there was no cause of action for the suit and dismissed the petition. However, his father who was one of the defendants, filed a petition to transpose himself as a petitioner and the Supreme Court has held that in the event of his being transposed as a petitioner, he has to seek leave of the court to sue in forma pauperis. Therefore, in that case, the person, who wanted to be transposed, had to establish his indigency to continue the suit. Another decision relied upon by the learned Counsel for the appellant namely Brahamaramba v. Seetharamayya (1947) 1 M.L.J. 119, also is not a decision on the point. In that case, one Dhulipala Venkata Subba Rao and his minor brothers filed the application seeking permission to sue in forma pauperis and before the petition came up for enquiry, the petitioner Dhulipala Venkata Subba Rao died and his mother got impleaded as a legal heir of the said Venkata Subba Rao. In that case, the mother expressed her willingness to pay court-fee. The learned Judges have referred to series of decisions in this case and in those cases, the persons, who were impleaded as the legal representatives were directed to pay court-fee. Even though in that Bench decision Venkata Subba Rao sought for permission to sue in forma pauperis, his mother, who continued the petition subsequently, could have contended that she was not liable to pay court-fee as her son, who filed the petition, was an indigent person if the law is to be taken that the legal heir need not prove his indigency. On the other hand, the legal heir offered to pay the court-fee in that case because she was not an indigent person though her son claimed to be an indigent person, and sought permission to exempt him from the payment of the court-fee. The observation in Brahamaramba v. Seetharamayya:
...In Annapurna Bai v. Balaji Maroti A.I.R. 1946 Nag. 320, the Nagpur High Court expressed the same opinion and said that the legal representative was in reality substituted for the deceased party in his capacity as the plaintiff and not as one suing for exemption from payment of court-fee.
From this expression, it is clear that the person, who had impleaded in a pauper application, is really a substitute of the plaintiff, but not a substitute for the applicant claiming exemption from payment of the court-fee, to continue the prayer of the original applicant to permit him or her to sue as an indigent person. Therefore, when a new plaintiff is substituted, unless he is exempted from payment of the court-fee, under Order 33, Rule 1, Code of Civil Procedure, he cannot continue the suit.
5. The scope of Order 33, C.P.C. is to help the person, who is really unable to pay the court-fee in respect of the relief sought for in the plaint. If the person, who filed the application, died during the pendency of the petition and the legal representative is added, the relief is sought for only by the newly added party. Therefore, if the court-fee is not paid for that relief, the newly added person in the capacity as the legal heir of the original applicant, should establish that he is an indigent person. Otherwise, the suit cannot be taken on file. In this case, the appellant herein, who got impleaded as legal heir of his mother Narasammal, is substituted for the deceased person in her capacity as a plaintiff and therefore, as he wants to continue the suit as plaintiff, he has to pay either the court-fee or to prove that he is an indigent person. It is not necessary that he should file a separate petition under Order 33, Rule 1, Code of Civil Procedure for permission to sue as an indigent. But he is bound to amend the petition in which he got impleaded describing him as an indigent person if he prays for the exemption of the payment of the court-fee. As this was not done by the appellant, the lower court has dismissed the petition. Even though I find that there is no error in the order of the court below, I feel that an opportunity must be given to the appellant to prove his indigency. Hence, it is proper to remand this matter to the court below for consideration's to the indigency of the appellant.
6. In the result, the order of the court below is set aside and the matter is remanded back to the lower court. The appellant herein, if he seeks exemption from payment of court-fee, he shall be permitted to file petition for amendment of the petition to describe him as an indigent person and after such amendment, he may be given opportunity to adduce evidence to prove his indigency. The appeal is ordered accordingly. No costs.