P L D 1952 Lahore 25 (PLP)

M. R. KAYANI, J. ‑ This is an application under O. LXI, rule 10 Civil Procedure Code by the contesting respondent, Mst. Rashida Khanam, for requiring the appellants, who were plaintiffs in the original suit, to furnish adequate security for the applicant's costs both in the Trial Court and in the High Court where the plaintiffs have lodged a first appeal. The appellants are the four sons of Muhammad Shafi and three of them are minors. Muhammad Shafi's brother Ghulam Nabi, with Muhammad Shafi acting as his mukhtar, mortgaged 6 kanals and 4 marlas of land in Garhi Shahu with possession to Rai Sahib Partap Singh for Rs. 5,100, and subsequently sold this land to Mst. Rashida Khanam, the applicant, for Rs. 11,850, inclusive of the mortgage amount which had to be paid off by the vendee. Thereafter Muhammad Shafi's sons, the appel lants in this case, brought, a suit for a declaration under custom that the mortgage and sale, being without consideration and necesssity, did not effect their reversionary interest. The Trial Court held that although consideration had been paid in full, and necessity for incurring some of the debts was established, there was no necessity at all to put the land to sale. The suit, however, was dismissed on the grounds firstly, that the parties were not governed by agricultural custom, and, secondly, that the plaintiffs' father, Muhammad Shafi, having consented to the alienations, the plaintiffs were estopped from suing. It was also found that Muhammad Shafi had received Rs. 236 as brokerage for having brought about the sale. The present application is based on the following grounds: (1) that inasmuch as the plaintiffs' father had acted as a broker, the suit was collusive and vexatious ; (2) that in so far as three of the four plaintiffs were minors and they did not own any immovable property, the applicant had applied to the Trial Court also that the plaintiffs be direct ed to furnish security for costs, apparently under O. XXV Civil Procedure Code, and that thereupon the plaintiffs had been required to furnish the necessary security ; and (3) that since the 26th of October, 1948, the date on which the plaintiffs' suit had been dismissed with costs, the applicant had or. numerous occasions taken out execution of the decree, both against the appellants and the surety, but had not so far succeeded in realizing any portion of the costs. Certified copies of various orders placed on the file show that in February, July and November 1950 unsuccessful efforts at execution were made, either because the judgment‑debtors were evading service or because there was no property which could be attached. The application has been resisted on two grounds: (1) that the poverty of the judgment‑debtors is not by itself enough to justify an order under O. XLI rule 10 Civil Procedure Code, and (2) that the application has been made at a very late stage. The date of application is the 22nd of May 1951 and the case is now on the weekly list. It was originally placed on the weekly list on the 7th of March 1950, but owing to the death of one of the respondents, the case was removed from the list and was again restored on the 20th of February 1951. As it is one of the cases in which an evacuee is interested, it is to be heard by the Custodian in the first instance, but it has not so far been brought on the daily list. The answers of the applicant's counsel to the second objection is that he could not have reasonably applied earlier before furnishing evidence of the fact that the appellants are deliberately avoiding the payment of costs in the Trial Court and that the security furnished in that Court was also inade quate. In view of the language employed in O. XLI, rule 10 Civil Procedure Code we feel certain that this is a fit case for requiring the appellants to furnish security for costs, but as some considerable time was taken by both parties in arguing the case and relying on judicial authority, we propose to dis cuss it at some length. Under the rule cited above "the Appellate Court may in its discretion, either before the res pondent is called upon to appear and answer or afterwards on the application of the respondent, demand from the appellant security for the costs of the appeal, or of the original suit, or of both". This gives a vast discretion to the Court, which may permit itself to be influenced by any reasonable circum stance, including the poverty of the appellant or a deliberate intention on. his part to avoid execution for costs in the first Court. The extent of the discretion vested in the Appellate Court will become evident by comparing the language of O. XLI r. 10 with that of O. XXV r. 1 which empowers the Trial Court to require security for costs only where the plaintiff resides out of Pakistan and at the same' time does not possess any sufficient immovable property within Pakistan other than the property in suit. In similar circumstances the Supreme Court Rules made under the Judicature Act of England direct that "the deposit or other security for the costs to he occasioned by an appeal should be made or given as may be directed under special circumstances by the Court of Appeal" (O. LVIII rule 15 of the Supreme Court Rules). A number of English rulings examined by Mr. Justice Venkatasubba Rao in Konnammal v. Annadana dadava Goundan (70 I C 586) show that the English practice has been to hold that poverty or inability to pay the costs of appeal, if it should be unsuccessful, is a special circumstance within the meaning of the Supreme Court Rules. It may be noted here that not all circumstances can be treated as special, and that consequently when the Civil Procedure Code left it to the discretion of the Court to require or not to require the appellant to furnish security, it purported to take the matter beyond the "special circumstances" envisaged by the English rule. In the case before Mr. Justice Venkatasubba Rao, property of great value was involved and the appellant had spent quite considerable amount of money in an attempt to establish his title to a jagir. Since the disposal of the suit various applications had been made to the High Court attended by heavy expenses, and a large Court‑fee had been paid on appeal. The learned judge observed that although the respondent had taken every possible step to realize from the appellant the costs of the Trial Court, he had not been successful. It was evident, although the learned judge did not state this clearly, that while the appellant had been lavish with expenditure in the prosecution of his appeal, he had taken care to deprive the respondent of his costs. His Lordship also referred to Jiwan Ali Beg v. Basa Mal (8 All. 203), a Full Bench decision of the Allahabad High Court, which decided the question of poverty of the appellant in a single sentence thus :‑ "We are unable to lay down any general rule by which the exercise of the discretion conferred by section 549 of the Civil Procedure Code should be governed; but we may go so far as to say that the mere fact of the poverty of an appellant, standing by itself, and without reference to any of the general facts of the case under appeal, ought not to be considered sufficient alone to warrant his being required to furnish security for costs" and observed that this was an answer in very guarded terms. Tyrrell, J. was still more guarded and said :‑ "Section 549 (corresponding to O. XLI rule 10) of the Code prescribes no conditions which absolutely entitle, a respondent to an order under the terms of that section requiring the appellant to furnish security for the costs of the appeal; and I should hesitate to import into the pro visions of the section any rule either away upon the question whether or not the poverty of an appellant by itself justifies an order requiring him to furnish security for costs." In Ambalathilakath Kuttoossa v. Mundavatan Korothveetil Kunhamma Amma (A I R 1937 Mad. 285) Pandrang Row, J., observed that the object of the rule was to secure the respon dent from the risk of having to incur further costs which he might never recover from the appellant, and this being the object, any application which is made under this rule must be made promptly. Further, apart from promptitude the risk also must be very great, and where it is not great and the amount involved is not really very large, other considerations must be given their due weight. For instance, one must be careful to see that a poor appellant is not deprived in affect of his right of appeal. Of course, the case will be different if there was any reason to suppose that the appeal was not a bona fide one, or that the appellants were only puppets in the hands of others. In that case the balance of costs due to the applicants was about Rs. 109 and the estimate of costs in the Court of Appeal was Rs.

400. The learned judge held that in these circumstances an order requiring security would not be justified. On the question of poverty, only two cases were cited for the appellants from the Lahore High Court. The first was Mst. Atri v. Harnam Singh (A I R 1930 Lah. 629). In that case one of the grounds on which the application was based was that the appellants possessed no property and another ground was that the respondent had not been able to execute her decree against the appellants, who were evading her. Relying on Bhagwan Debi v. Bhagwan Debi (A I R 1930 Lah. 384), the learned Single judge held that poverty alone was not a sufficient ground for ordering the appellant to furnish security. The other ground which related to the evasion of the appellants was not discussed. Bhagwan Debi v. Bhagwan Debi upon which reliance was placed, has briefly stated, with out pointing to authority, that poverty of the appellant by itself was not a sufficient ground for ordering security. On the second point, namely, delay in making the appli cation, the appellant's counsel also relied on Mst. Dalip Koer v. Jagir Singh (44 I C 23) where the facts were as follows. The appeal was preferred on the 17th of July 1913 and admitted on the 11th of October 1913. The application, however, was not made until the 29th of March 1917. In the meantime the paper book had been printed and the appellant had incurred all the costs of printing the paper book and engaging the coun sel. Even the respondents had engaged counsel, and the appeal had been fixed for hearing for no fewer than four times. On the last occasion the Division Bench, after hearing arguments on both sides, decided that the appeal in forma pauperis could not be entertained and directed the appellant to pay the Court‑fee. Even this order had been complied with before the application was made. " On these facts," Sir Shadi Lal, J., observed, "there can be no doubt that the application is a belated one and should not be entertained. The rule followed by the English Courts has always been that applications for security for costs must be made promptly, not only on the ground that the res pondent should apply for security for costs before he incurs them, but also on the ground that it is unreasonable that security should not be applied for till the applicant has incurred costs of the appeal." (The word "applicant" in the last sentence should, I think, be replaced by "appellant"). The English case on which Sir Shadi Lal, J., relied was Pooley's Trustee v. Lhhetham [(1886) 33 Ch. D 76]. In that case the application was made late because the applicant had before then no proof that the appellant was insolvent. Cotton, L. J., observed :‑ "This would undoubtedly have been a case for ordering security to be given if the application had been made in time. I do not mean to lay down a fixed rule ; but the present application, which is made after the briefs had been delivered, not prematurely, and when the case is only two or three out of the paper, and would probably have been reached if the time of the Court had not been taken up by some heavy causes, is too late unless the delay can be satisfactorily ex plained. It is urged that the applicant had not until the issue of the executions any sufficient evidence that the appellant was insolvent. The affidavit, however, does not state that the respondent had not till that time any reason able evidence of the appellant's insolvency. If that had been made out, the application, even at this late stage, might have been successful ; but we are asked to draw from the facts an inference that there was not any previous evidence of insol vency, an inference to which the applicant does not pledge his oath." It is evident that even at the stage when the case was ready for hearing, the learned judges would have been prepared to accept the insolvency of the appellant as a good ground for directing him to deposit security for costs, if there had been an affidavit by the applicant that no evidence of insolvency was available previously to the making of the application. The case of Pooley's Trustee establishes at least one thing, that the insol vency of the appellant (and poverty or inability to pay costs could not be placed at any lower footing) could have been treated as a good reason for directing the payment of costs, even if no other reason existed. In Birendra Nath Mitter v. Mst. Begum Jan (34 C W 14 495) Rankin, C. J., who wrote the judgment of the Division Bench, referred to the "settled practice" in English Courts to require a security for costs to be given by an appellant who would be unable through poverty to pay the respondent's costs in appeal if it should be unsuccessful, and ordered security to be furnished in a case where, on the findings of the Trial Court, the plaintiff had been put forward by her husband to prefer a claim against him in order to save the property from his creditors, and where the respondent had not been able to recover the costs of the lower Court. In M. Subbiah Thevar v. Balasubramania Pandia Thalavar [(1931) M W N 11571 the application was based on the appel lant's poverty and the fact that the respondent had not been able to recover costs from him. The litigation had been financed for the appellant by persons to whom he had executed agreements undertaking, if successful, to make payments amounting to seven lakhs of rupees, and these persons were inaccessible to Court in the matter of costs. The application had been made at a late stage of the case and the appellant had incurred even the printing charges. The High Court accepted the explanation for delay on the ground that if the costs had been deposited by the appellant, no occasion would have arisen for requiring security, and observing that the only prejudice arising to the appellant was that he had incurred the cost of printing, took an undertaking from the applicant to meet the cost of the appellant's printing if the appeal fails as a result of his failure to deposit security for costs. The printing charges in the present case, which have been paid by the appellants, are about Rs.

572. The costs of the first Court are about Rs. 300 and together with the costs of appeal, the figure is estimated to be about Rs. 1,

000. Although the case is on the weekly list, no date of hearing has been fixed. Other costs which must have been incurred by the appellants, such as Court‑fee and pleader's fee, would have been incurred by them even if the application had been made immediately after the respondent had been served. Her counsel, Mr. Yaqub Ali, undertakes to pay the costs of printing to the appellants should their appeal fail by reason of their default to deposit security for costs. We feel certain that the appellants, attitude in avoiding payment of costs of the Trial Court is a circumstances which should justify an application under O. XLI, r.

10. If this indi cates the poverty of the appellants, we see nothing in the language of rule 10 to prevent us from taking action on that ground alone. If in the restricted language of the English rule it has been treated as a "special circumstance" justifying an order for deposit of security, a fortiori it should be treated as an important circumstance under the vast discretion given to our Courts by rule 10 of the Code of Civil Procedure. The hesitation of the Full Bench in Jiwan Ali Beg v. Basa Mal to lay down a general rule that poverty of the appellant may by itself be treated as a good reason to justify an order for security apparently rests on the possibility of conceiving a case where an honest appellant may be thrown out of Court on the ground of poverty although he has otherwise diligently prose cuted the appeal and has even paid the costs of the Trial Court. To this extent we respectfully go with the Full Bench, but wee would prefer to treat poverty as a circumstance in favour of an order requiring security unless there exist other circum stances which should cause the exercise of discretion to operate harshly against the appellant without any neglect on his part. The only circumstance that could have induced us to with hold an order is the delay in making the application, and here again we have no doubt that if an application had been made promptly, the applicant would have had nothing to support her contention that the appellants have no intention of paying her costs. The only prejudice caused to the appellants is that they have spent some money in getting the paper book printed, and for that expense the applicants' counsel has made adequate compensation. We, therefore, direct the appellants to furnish security in the sum of Rs. 1,000 to cover the costs of the Trial Court and the estimated costs of appeal to our satisfaction. The applicant will have the costs of this application. A. H. Application allowed.