SULTAN RAWTHER Vs. VAVOOKAN RAWTHER
HIGH COURT OF KERALA
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(1.) In this revision petition Mr. K.S. Paripoornan, learned counsel for the plaintiff in O. S. 41/1963 on the file of the learned Subordinate Judge of Kottayam, who is the petitioner herein, challenges the order of the learned Judge directing the petitioner to furnish security for costs of the defendants in the suit.
(2.) The application quite naturally must have been filed under O.25 R.1, CPC. It was opposed by the plaintiff revision petitioner on two grounds, namely (1) that he having been allowed to institute the suit as pauper under O.33, should not be called upon to furnish security for costs, and (2) that in the circumstances of the case there is no justification at all to call upon him to furnish security for costs. In this connection it may be stated that the 2nd defendant in the present suit, had filed a suit for declaration of his possession and also for an injunction to restrain the present plaintiff revision petitioner, who was the sole defendant in that action, from interfering with his possession of the properties. No doubt in that suit the Trial Court appears to have held against the present 2nd defendant and dismissed the suit. But he took it up in appeal, A. S. No. 50/1958 of the Kottayam District Court. The learned District Judge was prima facie inclined to accept even the title of the present 2nd defendant. But anyhow the learned Judge, ultimately differing from the conclusions arrived at by the Trial Court, upheld the possession of the present 2nd defendant, who, as I mentioned earlier, was the sole plaintiff in that suit. Therefore the learned District Judge reversed the decree and judgment of the Trial Court, and after declaring the possession of the present 2nd defendant, granted the injunction asked for as against the present plaintiff, who was the sole defendant in that action. The decree passed by the learned District Judge in that appeal was challenged by the present plaintiff before this court in S. A. No. 1015/1958. No doubt the learned Judge who dealt with that second appeal, felt considerable doubt on coming to a conclusion one way or other regarding the title to the properties either in the present plaintiff or in the present 2nd defendant. But ultimately the learned Judge confirmed the decree passed by the learned District Judge in favour of the present 2nd defendant, in A. S. 50/1958. There can be no controversy that in those proceedings, the parties had to let in voluminous evidence in support of their case, and the 2nd defendant had to lead evidence to establish his possession, which, according to him, was based upon his title to the properties also.
(3.) In the present suit, the plaintiff revision petitioner has asked for declaration of his title to the suit properties and also for an injunction restraining the defendants from interfering with his possession of the properties on the basis of title. That claim no doubt is being very strenuously controverted by the defendants. Pending suit, the defendants filed applications before the learned Subordinate Judge under O.25 R.1, CPC. to direct the plaintiff to furnish security for costs. We have already indicated the stand that was taken by the revision petitioner in those applications. The learned Subordinate Judge has no doubt not directly considered in detail the question as to whether when a party has been allowed to institute a suit as pauper, he can ever be called upon to furnish security for costs either under O.25 R.1 in a suit, or under O.41 R.10 in an appeal. But on merits, the learned Subordinate Judge is of the view that the defendants should not be compelled to undergo the same ordeal as in the previous litigation; and according the learned Subordinate Judge, the present suit, which must be considered so to say a suit for declaration of title, is a vexatious suit filed by the present plaintiff. Therefore, the learned Subordinate Judge, exercising his discretion under O.25 R.1, CPC. has called upon the plaintiff to furnish security for costs of the suit.;
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