(1) One Krishna Sastry made application under the provisions of Rule 1 of Order 33 of Code of Civil Procedure for permission to sue the defendant-Company as a pauper for the recovery of a sum of Rs. 78,360/- as damages for injuries sustained by him in an accident in which he was involved while traveling in one of the buses belonging to that Company. Before that application was disposed of he, died and his brothers made an application that they should be substituted in that application for Krishna Sastry as his legal representative. This 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 develop upon his brothers when he died. This contention was overruled by the District Judge who allowed the brother of Krishna Sastry to be brought on record as the legal representatives of Krishna Sastry and posted the case for enquiry into the pauperism of those brothers. It is against this order that the defendant-Company presents this revision petition.
(2) Mr. Ramaswamy appearing on behalf of the defendant urges that the moment Krishna Sastry died his application for permission to sue as a s pauper lapsed and that his brother could not claim to continue the application after his death. The argument in support of this contention was that if Krishna Sastry and that that right came to an end when he died. It was further urged that if Krishna Sastry's brothers wished to continue to claim the damages which Krishna Sastry claimed from the defendant- Company, they should either make an independent application for permission to sue as pauper, the defendant- Company for those damages or institute a suit for that purpose by paying the court- fee due on the plaint.
(3) It does not appear to me that this contention is sustainable.
(4) Rule 1 of Order 33 of the Code of Civil Procedure provides that a suit may be instituted by a pauper. Rule 2 requires that an application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits. Under Rule 5 the Court has the power to reject the application for permission to sue as a pauper in certain cases. Under Rule 8, where the application is granted it becomes transformed into a plaint and has to be numbered and registered as if it was a plaint . Thereafter, that application which so gets transformed into a plaint should be proceeded with in all other respects as a suit instituted in the ordinary manner.
(5) That being so, an application presented for permission to sue as a pauper is a potential plaint and becomes one the moment it is granted. If , before the application is granted the applicant is dies it is not easy to understand why the entire proceedings come to an end without his legal representatives having the right to continue the application presented by the deceased.
(6) It is true that the right to sue as a pauper is a right personal to the person who applied for permission to sue in that way. But to say that 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 a pauper was granted, is , right which undoubtedly devolves upon the legal representatives of a deceased applicant since the right claim the other reliefs is not a personal right.
(7) That being the position, when the applicant who sues for permission to sue as a pauper dies, his legal representatives have no right to contend that although they are themselves not paupers they should be accorded the permission for which the deceased had applied. It is clear that they could not take advantage of the pauperism of the deceased and claim to sue as paupers in the place of the deceased if they themselves were not paupers and had sufficient means to pay the court-- fee.
(8) But, it would be open to the legal representatives to ask the Court to bring them on record as legal representatives of the deceased and to prosecute the proceedings. If they are themselves not paupers they would have to pay the court- fee payable on the plaint and get the application presented by the deceased converted into a plaint which will date back to the date of presentation of the application made by the deceased for permission to a sue as a pauper. But, if on the contrary, the legal representatives are also paupers being unable to pay the court -fee payable on the plaint , it would be open to them to contend that they should be granted permission to sue as paupers for which the deceased had applied.
(9) There is preponderance of authority in support of this proposition. In Mt. Bibi Marim v. Suraimal, AIR 1936 Pat 591, it was held that if a pauper dies during the pendency of an application made by him for permission to sue as a pauper, his legal representatives would be entitled to be brought on record in his place and to 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 Satish Chandra v. Phani Bhusan De, , the legal representatives were allowed to pay the court-fee within the extended time allowed by the Court and the suit was registered as a regular suit dating back to the date when the original application to sue as a pauper was filed. The same view was taken in Brahamaramba v. Seetharamayya. AIR 1947 Mad 405.
(11) In Mt. Annapurna Bai v. Balaji Maroti, AIR 1946 Nag 320, the legal representatives of a person who had applied for permission to sue as a pauper were held to be entitled to continue the proceedings on a proof of the fact that they were also paupers, where the original applicant had died before the application had been granted. That was also the view taken by their Lordships of the former High Court of Mysore in Devaraju Naidu v. T. M. Prabhuviah, AIR 1953 Mys 57. After a discussion of the entire case law, in Mst. Latif- Un- Nissa v. Mst. Khair- Un- Nissa, (S) , a Full Bench of the High Court of
Allahabad expressed the same view.
(12) Following these decisions I dismiss this revision petition.
(13) But in the circumstances I make no order as to costs.
(14) Revision Petition dismissed.
