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1951 DIGILAW 91 (MP)

Chhote Lal Nand Kumar v. Chote Lal Jwala Prashad

1951-11-17

DIXIT

body1951
ORDER : This is a revision petition against an order of the District Judge Bhind, directing the plaintiff applicant to give security for the payment of all costs likely to be incurred by the defendant non-applicants in a suit filed by the plaintiff against the defendants for a declaration of title to and possession of a certain house. The order in question was passed by the learned District Judge on an application by the defendants to the effect that the plaintiff resides out of Madhya Bharat and does not possess any immovable property within Madhya Bharat. On inquiry, the learned District Judge found this statement of the defendants correct and made the order as regards the security for costs. 2. The only contention advanced on behalf of the applicant is that after the coming into force, in this State, of the Code of Civil Procedure (Amendment) Act, (1951) Act No. II of 1951 extending the Code of Civil Procedure, 1908 to Madhya Bharat and making certain amendments in the Code, an order for security for costs can be made, only when the plaintiff does not reside in India and that as the plaintiff resides in India, he cannot be called upon to furnish under Order 25 Rule 2 (sic) security for costs. 3. The order of the learned Sessions Judge cannot, I think, be supported. Section 3 of the C. P. Code (Amendment) Act (1951) provides that in the Code of Civil Procedure "unless otherwise expressly provided for the words "the States" wherever they occur, the word 'India' shall be substituted". The amendment Act, nowhere, says that this substitution is not to be made in Order 25 Rule 1. It is therefore, clear that with the substitution of the word 'India' for the words 'the States' in Order 25 Rule 1, the Court can exercise its discretion under this Rule only when the plaintiff does not reside in India. The present case does not, therefore, fall within the purview of Order 25 Rule 1. Learned counsel for the non-applicants does not contend that it does. He, however, argues that the court has inherent power to order a plaintiff to give security for costs even in cases not covered by Order 25 Rule 1. In support of this contention, counsel for the non-applicants relies on - 'Chainrai Valiram v. Sunday Times Ltd.', AIR 1932 Sind 33. He, however, argues that the court has inherent power to order a plaintiff to give security for costs even in cases not covered by Order 25 Rule 1. In support of this contention, counsel for the non-applicants relies on - 'Chainrai Valiram v. Sunday Times Ltd.', AIR 1932 Sind 33. I am unable to accept this contention. In my opinion, the inherent power of the Court under Section 151 cannot be invoked in matters for which the Code does actually provide. It seems to me that when the Code makes specific provisions in Order 25 Rule 1 for taking of security for costs from the plaintiff, then only in these cases security for costs may be demanded from the plaintiff. To hold otherwise would be to render nugatory the provisions of Order 25 Rule 1. Even if it be held that the court has this inherent power, this does not seem to me to be a case for the exercise of it, for the defendants have not alleged or shown any circumstances apart from the residence of the plaintiff and his not possessing any property in Madhya Bharat, to justify the demand of security from the plaintiff. The decision of the court of Judicial Commissioner, Sind reported in - 'AIR 1932 Sind 33' is distinguishable on the ground that in that case the question was whether the inherent power of the court under Section 151 could be exercised for demanding of security from the plaintiff who in addition to his being a pauper was a mere nominal plaintiff and was carrying on litigation for the sole benefit of another person. That decision is not an authority for the proposition that on the grounds alleged with reference to residence and possession of property if an order for security under Order 25 Rule 1 could not be made, it could still be made under Section 151 without showing any exceptional circumstances. 4. For the above reasons I am inclined to think that the order dated 29-8-51 demanding security for costs from the plaintiff applicant is not legal. I, therefore, accept this revision petition and set aside the order. In the circumstances of the case, parties shall bear their own costs of this petition. Revision allowed.