Q. ‘A’ presented an application for leave to sue in forma pauperis but ‘A’ dies pending the hearing of the application. Can the application be continued by ‘B’ who is a legal representative of ‘A’? Give reasons.
U.P. Judicial Service Exam. 1982 and 1999
Ans: No, application cannot be continued by ‘B’—L.M. Mandal v. S.C. Das, 33 Cal 1163; Chyamani Tripathi v. Dharma Nand, AIR 1993 Ori 23 and Kaveri v. Yerohi, 51 Mad 697.
Reasons: In L.M. Mandal v. S.C. Das, the Calcutta High Court held that if plaintiff who is suing in capacity of an indigent person dies and his legal representative represents the suit then it is necessary that the legal representative is also an indigent person.
In Chaya Mani Tripathi v. Dharmanand, the Orissa High Court held that a legal representative cannot take the advantage of the poverty of his ancestors but he should also be an indigent person.
Similarly in Kaveri v. Yerohi the Madras High Court held that if the application to sue as forma paupris is presented for leave and the applicant dies during the pendency of hearing of application then it cannot be continued by legal representative of such indigent person because it is a private right. But if legal representative is also an indigent person, he can file another application.
In view of decisions given by Calcutta, Orissa and Madras High Courts in above referred cases it is clear that in the given problem ‘B’ who is the legal representative of ‘A’ cannot continue the application presented by ‘A’ for leave to sue as forma paupris but if he is himself an indigent person, he can file another application for leave to sue as forma paupris.
Source: Kishor Prasad, Problems & solutions in Civil Law, Universal