Tanaji Laxman Salunkhe vs Kumar Vitthal Mallinath Patil And ...
2022 Latest Caselaw 12756 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                  CIVIL APPELLATE JURISDICTION

                  WRIT PETITION NO. 9695 OF 2022

Shri. Tanaji Laxman Salunkhe

Age : 28 years, Occ : Agriculturist

R/o. Khadki, Tal. Tuljapur

Dist. Osmanabad                              ...Petitioner

       V/s.

1. Kumar. Vitthal Mallinath Patil

Minor through his Legal Guardian/Father

Shri. Mallinath Narayan Patil

R/o. Umarge, Tal. Akkalkot,

Dist-Solapur

2.     Shri. Mallinath Narayan Patil

R/o. Umarge, Tal. Akkalkot

Dist. Solapur.

3. The Government of Maharashtra,

For District Collector, Solapur                    ...Respondents

                        ----

                        CORAM : SANDEEP K. SHINDE, J.

                        DATED : 8TH DECEMBER, 2022.
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P.C. :

1.         Office has placed the matter for speaking to minutes
of the judgment dated 22
                            nd
                                 September, 2022.   The correction
sought is, in the cause-title.

2.         From the Appeal Memo, it can be seen that there are
in all three respondents. However, the judgment inadvertently
mentions only two respondents.               The name of the third
respondent, being "The Government of Maharashtra for District
Collector, Solapur" needs to be shown.

3.         The said correction be carried out and the judgment
be read accordingly.




                                         (SANDEEP K. SHINDE, J.)
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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                  CIVIL APPELLATE JURISDICTION

                  WRIT PETITION NO. 9695 OF 2022




Shri. Tanaji Laxman Salunkhe

Age : 28 years, Occ : Agriculturist

R/o. Khadki, Tal. Tuljapur

Dist. Osmanabad                              ...Petitioner

       V/s.

1. Kumar. Vitthal Mallinath Patil

Age : 04 years, Occ : Nil

Minor through his Legal Guardian/Father

Shri. Mallinath Narayan Patil

Age : 34 years, Occ : Agriculturist

R/o. Umarge, Tal. Akkalkot,

Dist-Solapur

2.     Shri. Mallinath Narayan Patil

Age : 34 years, Occ : Agriculturist

R/o. Umarge, Tal. Akkalkot

Dist. Solapur
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3.     The Government of Maharashtra

For District Collector, Solapur

(Notice to be served upon

District Collector, Solapur)                        ...Respondents

                               -----

Mr. Surel S. Shah, Advocate for the petitioner.

Mr. G.S. Godbole, Senior Advocate i/by. Ms. Ketaki Gadkari,

       Advocate for respondents no.1 and 2.

Mr. A.P. Vanarse, AGP for State-respondent no.3.

                               -----

                  CORAM : SANDEEP K. SHINDE, J.

                  CLOSED FOR JUDGMENT ON : September 14, 2022.

                  PRONOUNCED JUDGMENT ON : September 22, 2022.

JUDGMENT :

1. Rule. Rule, made returnable forthwith. By consent of the

parties, taken up for hearing immediately.

2. The point for consideration is, "Whether, heir of a person,

who has made an application to sue in "forma pauperis" under Order

33 and dies before the application is allowed or refused under Rule 7

of the order, can continue the proceedings in his own right either Rane 5/9

upon showing that he himself his pauper or by offering to pay court-

fee on the plaint ?"

3. The lower court answered the question in negative. Thus,

this petition.

4. Briefly stated, facts of the case are as under, Smt.

Chandralekha Vithal alias Vithoba Jadhav filed Civil Misc.

Application No. 177/2020 under Order 33 Rule 2 of the Civil Procedure

Code for permission to sue as an "indigent person". She pleaded in

the application that the respondent no.2 therein by practising fraud

on her mother, got executed in his favour a registered sale-deed

dated 9 August, 2019 of the land described in paragraph-1 of the th

application. Her mother passed away on 11 th November, 2019. Thus,

Smt. Chandralekha Vithal alias Vithoba Jadhav, was seeking a

declaration that the suit sale-deeds be set aside and such other

reliefs.

5. Pending application, on 1 October, 2020 Smt. Chandralekha st

Jadhav passed away; whereafter the petitioner, filed an application

to substitute himself as the legal representative of Smt. Chandralekha

Jadhav, on the basis of a registered Will dated 3 July, 2020, rd

executed by Chandrelekha, in his favour. The application moved by

the petitioner for substitution as a legal representative was to

prosecute the suit by offering to pay the court-fees.

6. That application was rejected on the ground that, no

person can claim right on the basis of Will, until the Will is probated.

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7. Feeling aggrieved by that order, this petition is preferred.

8. Heard Mr. Surel Shah for the petitioner and Mr. Godbole,

learned Senior Counsel for the respondent.

9. The Hon'ble Supreme Court in the case of Vijay Pratap

Singh v/ Dukh Haran Nath Singh, AIR (1962) SC 941, has held :

"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 O.33 of the Code of Civil

Procedure is presented and O.1 R.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..."

and further held :

"When the suit commences on the date the

application for indigency is filed the legal

representatives have a right to continue the

proceeding being substituted. In case they intend to

continue the suit as indigent persons they are to make Rane 7/9

application showing their indigency and are not to

depend upon the indigency of the deceased. In case

they feel that they would not be entitled to claim

indigency, they may seek permission of the Court to

pay the court-fee payable. However, on the death of

the applicant, the proceeding automatically does not

come to an end."

10. The aforesaid views of the Supreme Court have been

followed in the decision reported in AIR (1973) Supreme Court 2508,

Jugal Kishore, V/s. Dhanno Devi (dead) by L.R.s.

11. In the case of Smt. Annapurna Bai w.o. Ramji Sonar V/s.

Balaji Maroti Sonar, AIR (1946) Nagpur 320, the point for

consideration was, "Whether there can be substitution of a legal

representative in the place of a party who died pending his

application for permission to sue in form pauperis. " It was held

therein that,

"This right to sue has a pauper is a personal right which

dies with the party, but his right a plaintiff survives. The

petition to sue in forma pauperis is itself a plaint plus a

prayer that plaintiff be allowed to sue in forma pauperis.

Hence, there can be substitution of legal representative

in the place of a party who died during the pendency of

his application for permission to sue in forma pauperis, Rane 8/9

but if such legal representative wants to prosecute the

suit as a pauper, he has to make out right to that effect."

12. Thus, in view of the categorical observation made by the

Supreme Court in Vijay Pratap Singh (supra) to the effect that, there

is nothing personal in nature in the matter relating to an application

to sue as an indigent person, as well as, the decision of Nagpur High

Court, in Smt. Annapurna Bai (supra), it must be held that, on the

death of the applicant in proceedings during pendency of

application for permission to sue in forma pauperis, the legal

representatives can be brought on record. However, if legal

representative, seeks to prosecute the suit as a 'pauper', he has to

make out a right to that effect or he may offer to pay the court-fee,

and continue the proceedings. In the case of Smt. Annapurnabai

(supra), it was held that, after substitution, legal representative may

pay the requisite court-fee or if he is unable to pay, he has to apply

to the Court for permission to sue as a pauper. The Learned Judge in

Smt. Annapurna Bail (supra) has taken this view to obviate the

difficulty which may arise in cases where the original application for

permission to sue in forma pauperis, happens to be made on the last

date of limitation prescribed for the suit.

13. In the case reported in Dhulipalla Brahamaramba Vs.

Dhulipalla Seetharamayya and Ors. AIR (1947) Madras 405, a

Bench of Madras High Court allowed the legal representatives to

continue the proceedings initiated under Order 33 of the Code on

payment of court-fees and held that plaint was deemed to have Rane 9/9

been instituted on the day when application under Order 33 was

filed.

14. Thus, in consideration of the facts of the case and the law

as laid down in the abovestated rulings, the petitioner's application

for substitution was maintainable and therefore the trial Court ought

to have allowed the petitioner to pay the requisite court-fees and

to prosecute the suit.

15. For all these reasons, the petition is allowed. The question

is answered accordingly.

16. The application below Exhibit-17 in Civil Misc. Application

No. 177/2022 is granted.

17. The Rule is made absolute in above terms.

18. Petition is disposed of.

(SANDEEP K. SHINDE, J.)

Note : Correction is carried out in the cause-title only pursuant to

speaking to minutes order dated 8 December, 2022.

th

NEETA SHAILESH SAWANT Digitally signed by NEETA SHAILESH SAWANT Date: 2022.12.12 15:09:34 +0530