Koti Viswanatham vs Pandiri Satyanandam and Others

Venkatasubba Rao, J.—This is a Letters Patent Appeal from the order of Burn, J., refusing leave to the appellant to file his appeal in forma

pauperis. The facts, so far as they are relevant, may be shortly stated. The suit related to certain logs of timber, which the plaintiff claimed by virtue

of an agreement with the first set of defendants. The fifth defendant was the rival claimant, who alleged that the logs belonged to him and had been

transferred to the sixth defendant. The lower Court negatived the claim of the fifth and sixth defendants and decreed the plaintiff''s suit. The

applicant before Burn, J., was the fifth defendant, who applied for leave to file the appeal in forma pauperis. Pending the action, the logs were sold

and the sale proceeds were brought into Court and the fifth defendant, reciting that some monies were due from him to the sixth, transferred to him

such interest as he possessed in the proceeds. The point to note is that the transfer was not made with reference to any intended appeal,, having

been effected, as stated above, even before the judgment was delivered by the Court below.

The provision of law which governs the question is Order 33, Rule 5, CPC (the provisions of Order 33, being applicable by virtue of Order 44,

Rule 1 to appeals also) which runs thus:

The Court shall reject an application for permission to sue as a pauper, (e) Where he has entered into any agreement with reference to the subject-

matter of the proposed suit under which any other person has obtained an interest in such subject-matter.

It is contended for the appellant that the agreement referred to here must be of a champertous character, the idea being that the provision is

aimed against bargains tending to promote litigation, such bargains being immoral in a legal sense. First, it must be pointed out that the English Law

in regard to champerty and maintenance does not apply in India, for, it has been laid down that an agreement being champertous is not of itself

sufficient to render it void, but must be shown, in addition, to be contrary to public policy. Further, it is to prevent payment of court-fee being

evaded, that this provision has been enacted, and it matters little therefore with what purpose the agreement has been entered into; whether it is an

honest or bona fide one or of an improper character, seems an irrelevant factor, quite outside the scope of the enquiry. There is no need to read

into the section the suggested limitation, which does not find a place there. The principle underlying the provision is that a person ought not to be

allowed to sue in forma pauperis after transferring to a third party his interest in the property involved in the suit, no matter for what reason the

transfer has been made. In other words, as was observed in Hanifa Bai v. Haji Siddick Bui Meanji Sait (1906) 17 M.L.J. 447 : ILR 30 Mad. 547

(where, however, this point was not raised or considered), the question would be, whether at the date of the institution of the suit, there was a

subsisting agreement falling within the provision. In one case in Bombay, one in Allahabad and one in Calcutta a different view has been taken

without much discussion Bai Chandaba v. Kuver Saheb Bapu Saheb ILR (1893) 18 Bom. 464, Mansa Puri v. Harbaghat Puri (1916) 37 I.C. 172

and Abdul Jabbar Talukdar Vs. Sanu Bibi, . But with great respect we are unable to agree with these decisions.

It is next contended that the agreement here does not offend against the provision, as it was not made in view of the intended appeal. The

argument is, that from the use of the word ""proposed"" it should be inferred, that what the section refers to, is an agreement the party enters into,

having the suit in contemplation. That does not appear to be the natural meaning of the words. Is there an agreement or not referring to the subject-

matter of the proposed suit?-that is the only question, and there is no warrant for assuming that the agreement should be one made with reference

to or in view of the intended suit. Rule 9, which relates to the dispaupering of the plaintiff, throws some light on the question. Under that rule, for a

plaintiff being dispaupered, all that need be shown is that he has entered into an agreement of the character described, with reference to the

subject-matter of the suit, and it is noticeable that the word ""proposed"" does not occur there. It is difficult to believe that Rule 5 embodies a

different principle from Rule 9, the object of both the rules being to produce the same result. In the Allahabad case mentioned above Mansa Puri v.

Harbaghat Puri (1916) 37 I.C. 172, the learned Judges adopted the construction of the word ""proposed"" now contended for; they seem to have

arrived at the result by holding that if the agreement was to be charnpertous, it would necessarily be with reference to the suit in contemplation. As

already stated, we are unable to agree with this view.

Leave to appeal in forma pauperis has therefore been rightly refused.

The question then remains, whether the learned Judge''s order refusing to give the appellant time to pay the requisite court-fee, can be upheld.

That the Court has power u/s 149, Civil Procedure Code, to grant such time, cannot be disputed. We have carefully gone through the facts and it

has not been shown that there was want of bona fides on the part of the appellant; nor can it be suggested that the party who ought to have filed

the appeal was the sixth defendant, the transferee, and not the fifth. The parties might reasonably have thought that the findings against the sixth

defendant could not be successfully attacked in appeal, but that so far as the fifth defendant was concerned, the point he could urge was altogether

different. We are therefore of the opinion that the appellant ought to have been given time for payment of the court-fee; four days'' time is

accordingly granted from this date.

Mr. Lakshmanna for the respondent suggests that our order may work hardship upon him unless one of two courses is adopted, either the sixth

defendant should be brought on the record as appellant, or the respondent should be allowed to apply for security for costs. Mr. M.S.

Ramachandra Rao for the appellant believes that the sixth defendant may be willing to come on the record as an appellant. If such an application is

made, it will be allowed; if not, Mr. Lakshmanna will be at liberty to apply for security for costs. When applications are made in this behalf, they

shall be posted before this Bench.

We direct the appellant to pay Rs. 103 (the costs awarded by the order under appeal) to Mr. Lakshmanna in one month from this date. If

default is made, it will be treated as equivalent to failure to comply with an order for security for costs and the respondent will be at liberty to take

appropriate steps.

We make no order as to costs in this appeal.