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Suraj Kuar vs Sant Singh And Anr.

High Court Of Judicature at Allahabad|17 February, 1941


ORDER Collister, J.
1. This is a plaintiff's application in revision under Section 115, Civil P.C., arising out of an order demanding security for the costs of a suit. The applicant is a woman, and she instituted a suit for possession of property, the valuation being Rs. 6000. The opposite party applied to the learned Judge demanding security for costs from the applicant. Admittedly, the provisions of Order 25, Rule 1, Civil P.C., do not apply in terms, but the learned Judge, purporting to act in the exercise of his inherent powers under Section 151, Civil P.C., has allowed the application of the opposite party and has called upon the applicant to deposit security in the amount of Rs. 1000 for the costs of defendants 1 and 2. Learned Counsel for the applicant contends that this order was without jurisdiction. Alternatively, it is pleaded that the amount demanded was far in excess of what was required as security for costs, and this is conceded. It appears that litigation in respect to this property has been going on for about seven years. The applicant claims to have succeeded as the sole heir of her father in January 1933, but she has now appeared in the arena for the first time. The learned Judge says:
It is only when the litigation has finally ended in the victory of defendants 1 and 2 over defendants 3 and 4 in the High Court that plaintiff has suddenly come forward with the allegation that she has had no knowledge of all this litigation although she has from the start been heir in possession. When therefore defendants 1 and 2 allega that she is merely a puppet put up by defendants 3 and 4 in an effort to re-open the litigation which has ended unsuccessfully, it is clear, without in any way pre-judging the suit, that their allegation is plausible and may in the end be substantiated. It seems to me that when defendants' allegations are sufficient to make out plausible grounds then the Court should certainly in the interests of justice take action to ensure that justice will be done if the allegations are eventually proved correct. In the present case, if it is true that plaintiff is a mere puppet of defendants 3 and 4 and, in addition to having no property herself, is put up for the vexatious purpose of nullifying the effect of the decree obtained by defendants 1 and 2 in the High Court, then it would be a complete miscarriage of justice if, on the failure of her suit, she were allowed to escape the burden of the defendant's costs.
2. On equitable grounds there might be a great deal to be said for the learned Judge's view; but what this Court has to consider is whether he had jurisdiction to demand security for costs on grounds not provided for in Order 25, Rule 1, Civil P.C. Learned Counsel for the opposite party relies upon Khajah Assenoollajoo v. Solomon ('87) 14 Cal. 533 and Chainrai Valiram v. Sunday Times Ltd ('32) 19 A.I.R. 1932 Sind. 33 which is the authority the learned Judge has followed. In the first mentioned case a learned Judge of the High Court at Calcutta observed:
...I take it that there can be no doubt...that this Court has power to require security for costs if it finds that the plaintiff is not the real litigant but that he is only a puppet in the hands of others.
3. Further on the learned Judge says:
As I understand the English decisions, the Courts do not require security because the plaintiff is a pauper or because he is a mere trustee, but they do require security when they find that he is not the real litigant.
4. There was no discussion in that judgment of the provisions in the Civil Procedure Code of 1882 corresponding to Order 25, Rule 1 and Section 151 of the Code now in force, and the only authority which the learned Judge referred to was the Privy Council decision in Ram Coomar Coondoo v. Chunder Canto ('16) 2 Cal. 233 at p. 259 in which their Lordships said:
It is the ordinary practice, if the plaintiff is suing for another, to require security for costs and to stay proceedings until it is given.
5. This observation was mentioned by Cuming J. in Bhairabendra Narain Deb v. Udai Narain Deb ('24) 11 A.I.R. 1924 Cal. 251. At p. 865 the learned Judge in commenting on that case observes that that decision was under the old Code of 1859 and he says:
In the old Code of 1859 there was no provision at all for giving security for costs by a plaintiff and in the suit in question it does not appear that the particular point had to be decided.
6. Further on the learned Judge observes:
Had the Code been entirely silent on the point, then possibly the inherent power of the Court might have been invoked, but when the Code does make certain provisions for the taking of security for costs from the plaintiff, it seems to me that in those cases and those cases only may costs betaken from the plaintiff, and that for security for costs to be demanded from the plaintiff the case must fall within the purview of Order 25, Rule 1.
7. Then again he says:
I do not think the inherent power of the Court can be invoked in matters for which the Code does actually provide. The Legislature possibly deliberately did not allow security to be asked for from a plaintiff except in exceptional cases given in Order 25, Rule 1.
8. In that particular case the only ground on which security was demanded was apparently that one of the plaintiffs had been transferred to the category of the defendants; but the observations are of a general character. The view taken by Cuming J. was dissented from by Rupchand A.J.C., in Chainrai Valiram v. Sunday Times Ltd ('32) 19 A.I.R. 1932 Sind. 33. After quoting the observations of Cuming J., which I have reproduced above, the learned Judge says at page 34, column 2:
I am afraid these observations lose sight of the fact that the provisions of the Code of Civil Procedure are not exhaustive and do not purport to deal with every possible case, and it is somewhat difficult for me to hold that because the Legislature has provided for security being ordered in certain specified cases, the Legislature thereby intended to deprive the Court of its inherent jurisdiction to make similar orders in cases not specifically provided for.
9. At p. 35, col. 1, the learned Judge says:
From the very early times the Courts in England have refused to recognize the mere poverty or insolvency of the plaintiff as a sufficient ground for ordering him to give security for costs as a condition precedent to his going on with the suit. The case is, however, different where, in addition to his being a pauper, he is a mere nominal plaintiff and is carrying on litigation for the sole benefit of another person.
10. This decision is definitely against the applicant, just as the observations in Bhairabendra Narain Deb v. Udai Narain Deb ('24) 11 A.I.R. 1924 Cal. 251 are in her favour. Another authority against the applicant is a decision of a single Judge of the Madras High Court in Ramaswamia Pillai v. Krishnammal ('35) 22 A.I.R. 1935 Mad. 230 In that case Walsh J. observed:
There is no absolute rule that a pauper plaintiff cannot be asked to furnish security under Order 25, Rule 1(3).
11. The learned Judge relied on the observations of the Privy Council in Ram Coomar Coondoo v. Chunder Canto ('16) 2 Cal. 233 already referred to. Learned Counsel for the applicant has referred me to certain observations of the Privy Council in Gokul Mandar v. Pudmanund Singh ('02) 29 Cal. 707, where their Lordships at p. 715 say:
They will further observe that the essence of a Code is to be exhaustive on the matters in respect of which it declares the law, and it is not the province of a Judge to disregard or go outside the letter of the enactment according to its true construction.
12. By way of analogy, learned Counsel for the applicant has also referred me to the case in Ram Sarup v. Gaya Prasad ('25) 12 A.I.R. 1925 All. 610. In that case an ex parte decree was passed against a defendant. He applied to have the decree set aside under Order 9, Rule 13, Civil P.C., but the trial Court dismissed his application on the ground that his absence had been intentional. The defendant appealed and, although it was a matter of admission that his absence at the date of hearing had been intentional, the learned Judge allowed the application on grounds extraneous to the provisions of Order 9, Rule 13, Civil P.C. It was held that the lower appellate Court had no jurisdiction to set aside the ex parte decree. At page 62 Sulaiman and Daniels JJ., observe:
The lower appellate Court had itself found that there was no sufficient cause for the defendant not appearing when the suit was called on for hearing and that his absence was intentional. The case accordingly did not fall under Order 9, Rule 13. It is urged before us that, apart from Order 9, Rule 13, the Court had inherent jurisdiction to set aside an ex parte decree.... In our opinion it had no jurisdiction outside the provisions of that rule. This was the view clearly expressed by a Bench of this Court in Kallu v. Nadir Baksh ('22) 9 A.I.R. 1922 All. 441.
13. The provisions as regards the taking of security for costs from a plaintiff are to be found in Order 25, Rule 1, Civil P.C. Sub-rules (1) and (2) provide for security to be taken where the plaintiff does not reside in British India or leaves British India in certain circumstances and possesses no sufficient immovable property within British India other than the property in suit. Sub-rule (3) enacts that in a suit for the payment of money in which the plaintiff is a woman the Court may order her to give security if it is satisfied that she does not possess sufficient immovable property within British India. Thus, as regards a plaintiff who is a woman, the Legislature has specifically laid down that security may be taken from her in certain circumstances in a suit for payment of money. Inclusio unius exclusio alterius, and therefore security cannot be taken from a female plaintiff in a suit for property. In my opinion when the Legislature has enacted specific provisions for the taking of security from a plaintiff in certain cases and in certain sets of circumstances, no discretion is left in the Court for taking such security in any case or in any set of circumstances other than those specifically provided for. Had the Legislature so intended, it could easily have provided for security to be taken in cases where it appeared to the Court that the plaintiff had been put forward by other persons interested in the suit; or it could have enacted that security might be demanded "for any other sufficient cause." The provisions of Section 151 are very wide, but I think that if the learned Judge's view were accepted, the effect would be to extend the scope of the section in a manner which was not intended by the Legislature. It is argued that the Code is not exhaustive. The argument is correct, but I do not think that it assists the opposite party. It is exhaustive, as stated by the Judicial Committee, "on the matters in respect of which it declares the law." With respect I differ from the view taken in Chainrai Valiram v. Sunday Times Ltd ('32) 19 A.I.R. 1932 Sind. 33 and in Ramaswamia Pillai v. Krishnammal ('35) 22 A.I.R. 1935 Mad. 230 and I agree with the view expressed by Cuming J. in Bhairabendra Narain Deb v. Udai Narain Deb ('24) 11 A.I.R. 1924 Cal. 251. Upon this view of the matter I must allow this revision and I accordingly set aside the order of the Court below. The applicant will have her costs of this revision.
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Suraj Kuar vs Sant Singh And Anr.


High Court Of Judicature at Allahabad

17 February, 1941