011-NLR-NLR-V-15-AIYAR-v.-TAMBYAH-et-al.pdf
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Present: Wood Renton J. and Grenier J.
AIYAR v. TAMBYAH et ah
C. Jaffna, 6,965.
Appeal in forma pauperis—No security reguiredr~Civil Procedure Code,ss. 756 and 778.
A litigant who has been allowed by the Supreme Court to appealin formd pauperis need not furnish security as a condition precedentto his appeal being forwarded.
fjl HE facts are set out in the judgment.
Bawa (with him Butnam), for plaintiff, appellant.—It would bepractically denying a pauper the right of appeal if security wasinsisted upon. If an appellant could not pay for the stamps, afortiori he could not give security.
Under the English law in such cases security is not required.Biggs v. Dagnall,3 WRle v. St. John,4
Balasingkam, for the defendants, respondents.—The only con-cession to which the appellant is entitled is that he has the right, byvirtue of the order made under section 778 of the Civil ProcedureCode, to file his appeal without stamps. Section 778 expresslyrefers to stamps. It cannot he said that the Legislature did not
1911.
i $ AIL 377.
* (1904) 1 K. B. 0.
3 (1895) 1 Q. B. 208.
* (1910) 1 Chancery 701.
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consider the question of security. The provisions as to giving ofsecurity contained in- section 756 applies to all appellants, includingpaupers. Special reference is made in that section, and in the formNo. 128, Schedule II., to appeals by paupers; yet no concession isgiven to them with respect to costs. Section 778 gives a concessionas to stamps only. The question of security cannot be considered'a casus omissus.
The present appellant was assisted by several others in the conductof his. case; when he applied for leave to appeal he was representedby two counsel, to. whom he had paid fees. The Supreme' Courtreferred the application to the District Judge, to find out if he wasactually a pauper. The District_Judge had reported that he hadfriends assisting him, in his litigation. Under these circumstances,he is not entitled to appeal without giving security {Jogendra DebRoykut1).
If the English law is to be applied, it must be applied in its entirety.Under the circumstances of this case, the appellant would • bedispaupered under the'English law. See English “Rules of theSupreme Court, 1883, ’’ order 16, rule 28.
The waiver of stamps is a concessipn by the Crown; but to deprivethe respondents of their, security would be to harass them. Theappellant has.'had the luxury of a litigation in the District OourvCounsel also referred to. Rodrigo v. Fernando.*
a
Bawa, in reply.
Cur. adv. vvlt.
December 15, 1911. Wooi> Renton J.—
The question involved in this application is whether or not alitigant who has been allowed, by the Supreme Court *to appealin formd pauperis from a judgment of the District Court can berequired to furnish security as a condition precedent to his appealbeing forwarded. The Supreme Court order is silent on' the matterof security. But the learned District Judge has declined to forwardthe appeal until security has been given, on the ground that thereis no provision in the Civil Procedure Code which enables him todispense with it. No local authority'under , the Code of Civil Pro-cedure itself was cited' to us on either side in argument. It washeld, however, as far back as 1838, under-.the rules of practice thenin force, in the case of Rodrigo v. Fernando,* that a party who hasbeen admitted to sue in formd pauperis cannot be called upon togive security for costs. “ To require security, ” said the Judges whodecided that-case, “ for an adversary’s costs from a person who hasproved that he has not the means to pay his own were to deprivethe pauper at the outset of all. refief from any injustice. ’’ So far asI have been able to ascertain, it has never been the practice in Ceylonto require security from pauper appellants. The English practice
i 18 W. R. 102.* (1336) Morgan's Digest 2311
1911.
Aiyar v.Tambyah
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under the Judicature Acts and the Buies of Court is the same. “1cannot think, " said Wright J. injbhe case of Biggs v. Dagnall,1 “ thatthe right of 'appealing in formA pauperis can be made subject to thelimitation of giving security for costs; for if it were, the practicalresult would be that a pauper could never appeal. ” See also on thesame point Wille v. St. John.* In the absence of any such provisionon the points in IherCivil Procedure Code, I would follow the case ofRodrigo v. Fernando3 and the English decisions just referred to.
This application should, in my opinion, be allowed, and theDistrict Judge should be directed to forward the applicant’s appealwithout security.
Grenier J.—
I agree. The practice, so far as I am aware, has always been notto require security, from a pauper when he has been granted leave toappeal. A pauper would be remediless, however good a case hemight have, if any such condition were imposed. I do not thinkthat the Civil Procedure Code, either expressly or by implication,repealed the practice above referred to.
Application allowed.
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Woos
Aiyar v.Tambyah