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2010 DIGILAW 1306 (KAR)

Lakshmi v. Vijaya Bank

2010-12-28

A.N.VENUGOPALA GOWDA

body2010
JUDGMENT : The petitioners are the wife and children of R.V. Revanna, the petitioner in P.Misc.No.37/2004, on the file of the City Civil Court, Bangalore. On 28.07.2004, R.V. Revanna presented a petition under Order 33 Rule 1 read with Order 7 Rule 1 of CPC, to sue the respondents, as an indigent person. The plaint part of the application prayed for the relief of declaration that the sale deed dated 04.01.2003 registered as document No. 17977/2002-03 in the Office of the Sub-Registrar, Kengeri executed in favour of the 1st respondent–Prakash Prabhu, with respect to the plaint ‘B’ schedule property is void and for consequential reliefs. 2. The respondent herein, the 2nd respondent in P.Misc 37/2004, has filed statement of objections inter-alia contending that, R.V. Revanna is not an indigent person falling within the purview of Rule 1 of Order 33 CPC. The 1st respondent – Prakash Prabhu, having not appeared despite service was placed ex-parte. 3. The petition having been posted for receiving evidence about the applicant’s indigency, an affidavit of R.V. Revanna was filed. The petitioner – R.V. Revanna died on 25.11.2008 i.e., before his cross-examination. 4. The petitioners herein filed an application on 18.12.2008 under Order 22 Rule 4 CPC to permit them to come on record as legal representatives of the deceased petitioner. The respondent has filed statement of objections contending that the petitioners have no right to come on record and continue the petition in place of the deceased petitioner and that, the main petition does not survive for consideration. 5. The trial court has held that, the financial status of the deceased petitioner being personal in nature, the legal heirs cannot seek substitution. The application filed by the petitioners was dismissed. However, 15 days time was granted to the petitioners to pay the court fee by making it clear that in case of default, the petition shall abate. This writ petition is directed against the said order. 6. Section 26 of CPC provides how a suit is to be instituted. Every suit, as stated in the said section, shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. R.V. Revanna has presented the application-cum-plaint under Order 33 Rule 1 read with Order 7 Rule 1 of CPC. 6. Section 26 of CPC provides how a suit is to be instituted. Every suit, as stated in the said section, shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. R.V. Revanna has presented the application-cum-plaint under Order 33 Rule 1 read with Order 7 Rule 1 of CPC. It was not a suit instituted by the presentation of a plaint, but the suit was instituted in the manner prescribed by Order 33. It would be appropriate to notice the relevant Rules. Rule 1 reads as follows: “1. Suits may be instituted by indigent person;- Subject to the following provisions, any suit may be instituted by an indigent person. Explanation I: A person is an indigent person – (a) if he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject-matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit, or (b) Where no such fee is prescribed, if he is not entitled to property worth one thousand rupees other than property exempt from attachment in execution of a decree, and the subject matter of the suit. Explanation II: xxxxx Explanation III: xxxxx Rules 2 and 3 which provide for institution, read as follows: “2. Contents of application: Every application for permission to sue as an indigent person shall contain the particulars required in regard to plaints in suits; a schedule of any movable or immovable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto; and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings. 3. Presentation of application: Notwithstanding anything contained in these rules, the application shall be presented to the court by the applicant in person, unless he is exempted from appearing in court, in which case the application may be presented by an authorized agent who can answer all material questions relating to the application, and who may be examined in the same manner as the party represented by him might have been examined had such party attended in person.” Rule 5 provides for rejection of an application for permission to sue as an indigent person in certain cases. Rule 8 reads as follows: “8. Rule 8 reads as follows: “8. Procedure if application admitted: Where the application is granted, it shall be numbered and registered, and shall be deemed the plaint in the suit, and the suit shall proceed in all other resects as a suit instituted in the ordinary manner, except that the plaintiff shall not be liable to pay any court fee in respect of any petition, appointment of a pleader or other proceeding connected with the suit”. Upon the application being granted, it becomes transformed into a plaint and has to be numbered and registered as if it was a suit instituted in the ordinary manner except that the plaintiff shall be liable to pay the court fee collected with the suit. An application presented for permission to sue as an indigent person is a potential plaint and becomes one the moment it is granted. 7. Though the right to sue as an indigent person is a right personal to the person who applied for permission to sue in the said way, but to say it is not the same thing as saying that, because that right is a personal right, the entire proceedings come to an end and lapse the moment the applicant dies. The right to claim the relief specified in the application which would become the plaint if the application for permission to sue as an indigent person was granted is a right which undoubtedly devolves upon the legal representatives of the deceased applicant, since the right to claim the other reliefs is not a personal right. 8. When the applicant who sues for permission to sue as an indigent person dies, his legal representatives have no right to contend that, although they are themselves not indigent persons, they should be accorded the permission for which the deceased had applied. The legal representatives cannot take advantage of the indigency of the deceased and claim to sue as indigent person in the place of the deceased, if they themselves were not indigent persons and have sufficient means to pay the court fee and prosecute the suit. 9. In Salem Bangalore Sri Ranga Vilas Motors (P) Ltd., Vs. The legal representatives cannot take advantage of the indigency of the deceased and claim to sue as indigent person in the place of the deceased, if they themselves were not indigent persons and have sufficient means to pay the court fee and prosecute the suit. 9. In Salem Bangalore Sri Ranga Vilas Motors (P) Ltd., Vs. S.S. Krishna Sastry & Others reported in AIR 1962 Mysore 47, one Krishna Sastry made an application under the provisions of Rule 1 of Order 33 CPC for permission to sue the defendant as a pauper for the recovery of damages for injuries sustained by him in an accident in which he was involved while traveling in one of the buses belonging to the defendant. Before the application was disposed off, Krishna Sastry died and his brothers made an application, that they should be substituted in that application for Krishna Sastry, as his legal representatives. The application was opposed by the defendant on the ground that the right to sue as a pauper which was personal to Krishna Sastry did not devolve upon his brother, when he died. The objection was overruled and the legal representatives of Krishna Sastry were permitted to come on record. The said order was questioned by the defendant, by contending that, the moment Krishna Sastry died, his application for permission to sue as a pauper lapsed and that, his legal representatives could not claim to continue the application after his death, in that, the right to sue as a pauper was personal to Krishna Sastry and that the right came to an end, when he died. Finding the contention to be untenable, it was held that, if a pauper dies during the pendency of an application made by him for permission to sue as pauper, his legal representatives would be entitled to be brought on record in his place and continue the proceedings as a suit on payment of court fee or on proof of the fact that they were paupers and were not able to pay the court fee. 10. In Saraswatewwa & Another Vs. 10. In Saraswatewwa & Another Vs. Shivarudrappa Channappa Kinnala & Another, reported in AIR 1981 Kar 8 , a revision petition was filed by the legal representatives of the original plaintiff, who came on record in the appeal and submitted that, he could prosecute the appeal without paying the court fee since the original plaintiff was permitted to file the suit in forma pauperis. It was further submitted that, he himself was an indigent person within the meaning of Order 33 Rule 1 CPC. The appellate court enquired into the matter and held that, he would not be an indigent person as contemplated under Rule 1 of Order 33 CPC and that, the legal representatives have no immunity from paying the court fee. Considering the said factual background and the contention, it was held as follows: “I am satisfied that the learned Civil Judge was justified in holding that the legal representative of the original plaintiff has to either pay the court fee or prove that he could also enjoy the immunity provided under Order 33 Rule 1 CPC”. (Emphasis supplied) 11. In Vijay Pratap Singh Vs. Dukh Haran Nath Singh, reported in AIR 1962 SC 941 , a petition for leave to sue in forma pauperis for declaration of title was filed. The petitioner claimed that, on the death of the widows of Maharaja Man Singh, the estate developed on his grandfather, Ganga Dutt, who died in 1942. The estate was thus ancestral property in the hands of Ramjivan, the father of the plaintiff, who thus got interest in the same by reason of his birth. Ramjivan, was made one of the defendants to the suit. The plaintiff’s petition to sue as a pauper was rejected by the Subordinate Judge under Order 33 Rule 5(d), on the ground that, the allegations in the application did not show the cause of action. The court had not decided the issue about his pauperism because, that could be done only under Rule 7(3), after trial of the issue under Rule 6. On such rejection, Ramjivan, the father, applied to the court to be transposed as the petitioner, but that application was also rejected. The court had not decided the issue about his pauperism because, that could be done only under Rule 7(3), after trial of the issue under Rule 6. On such rejection, Ramjivan, the father, applied to the court to be transposed as the petitioner, but that application was also rejected. Hon’ble Supreme Court has held that, the rejection of both the applications was improper because, in the first case, the court had to see under Rule 5(d), whether, the allegations made in the petition showed a cause of action and the court had no power to enter upon a trial of the issues affecting the merits of the claim at that stage. As regards Ramjivan’s application for transposition under Order 1 Rule 10 it was held that, the application was wrongly rejected because such an application could have been legally entertained by the court because the suit had already been instituted. While dealing with the point, the Hon’ble Supreme Court has observed as follows: “We are also of the view that the High Court was in error in holding that by an application to sue in forma pauperis, the applicant prays for relief personal to himself. An application to sue in forma pauperis, is but a method prescribed by the Code for institution of a suit by a pauper without payment of fee prescribed by the Court Fees Act. If the claim made by the applicant that he is a pauper is not established the application may fail. But there is nothing personal in such an application. The suit commences from the moment an application for permission to sue in forma pauperis as required by Order 33 of the Code of Civil Procedure is presented, and Order 1 Rule 10 of the Code of Civil Procedure would be as much applicable in such a suit as in a suit in which court fee had been duly paid.” Thus, it is clear that the suit by an indigent person or a person claiming to be an indigent person must be regarded as instituted on the date of the presentation of the application for permission to sue in forma pauperis as required by Rules 2 & 3 of Order 33 CPC. 12. 12. The suit which was already instituted does not come to an end, because, the application by which the suit was commenced is a composite document comprising a plaint and a prayer to sue in forma pauperis and, therefore, when the latter alone is refused, the suit does not come automatically to an end. The proceedings can still continue if court fee is paid on the application treated as a plaint, in which case the date for limitation would be the date on which the application was presented to the court. 13. In the instant case, as noticed supra, even before the issue regarding indigency of the petitioner could be enquired and decision rendered, the petitioner R.V. Revanna died. Even if, the issue regarding indigency had been decided against R.V. Revanna, he ought to have been granted reasonable time to pay the court fee. It was open to the court under Section 149 of CPC to order the plaintiff to pay the court fee and also enlarge the time to pay the court fee. If the court fee is not paid, the only order that the court could have passed was to reject the plait under Order 7 Rule 11(c) CPC. 14. There is no dispute that the petitioners are the wife and children of deceased R.V. Revanna. Their application to come on record as the legal representatives of deceased petitioner having been filed within the prescribed period and the suit having been instituted claiming right over immovable property, the right to sue having survived, ought to have been allowed and they ought to have been grated reasonable time to pay the court fee of Rs. 86,625/- in terms of the valuation slip. If they had also applied to continue the proceedings as indigent persons, the same ought to have been enquired into and decision taken. The order passed, impugned herein being otherwise, is irrational and illegal. In the result, the writ petition is allowed and the impugned order is quashed. The application field by the petitioners to come on record as legal representatives of deceased petitioner R.V. Revanna stands allowed. The trial court to proceed further in the matter, by taking into consideration the observations made supra. No costs.