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CASE NO.: Appeal (civil) 943  of  1993

PETITIONER: UNION BANK OF INDIA

       Vs.

RESPONDENT: KHADER INTERNATIONAL CONSTRUCTION & ORS.

DATE OF JUDGMENT:       08/05/2001

BENCH: U.C. Banerjee & K.G. Balakrishnan

JUDGMENT:

K.G. BALAKRISHNAN, J. L...I...T.......T.......T.......T.......T.......T.......T..J

   The  point  for decision in this appeal is  whether  the first  respondent,  a  limited   company  ["respondent"  for short], is entitled to sue as an indigent person under Order XXXIII, Rule 1 of the Code of Civil Procedure.

   The  facts  of  the  case,  in  brief,  are  thus.   The respondent  filed  a suit before the Sub-Court,  Kochi,  and sought  permission  to  sue  as  an  indigent  person.   The appellant  herein  raised objections and contended that  the plaintiff  being a public limited company was not a ’person’ coming  within the purview of Order XXXIII, Rule 1 CPC,  and the  word  ’person’  referred to therein applies only  to  a natural  person  and  not to other  juristic  persons.   The Subordinate  Judge permitted the respondent-plaintiff to sue as  an  indigent person.  Aggrieved thereby,  the  appellant filed  a Revision and the same was dismissed by the  learned Single  Judge of the the High Court and that judgment of the High Court is assailed in this appeal.

   We  heard  Mr.  K.K.  Venugopal, learned Senior  Counsel for  the appellant and Mr.  T.L.  Vishwanatha Iyer,  learned Senior  Counsel for the respondent.  Learned counsel for the appellant  contended  that  under Order XXXIII, Rule  1,  an Explanation  has been given as to who shall be an  ’indigent person’  and it was pointed out that an ’indigent person’ is one  who  is not possessed of sufficient means  [other  than property exempt from attachment in execution of a decree and the subject-matter of the suit] to enable him to pay the fee prescribed  by law for the plaint in such suit;  or where no such  fee  is prescribed, if he is not entitled to  property worth  one  thousand rupees other than the  property  exempt from   attachment  in  execution  of   a  decree,  and   the subject-matter of the suit.  It was further pointed out that prior  to  the amendment of Rule 1 of Order XXXIII, CPC,  an ’indigent person’ was mentioned in the Explanation to Rule 1 of  Order XXXIII as a person who is not entitled to property worth  one  hundred rupees other than his necessary  wearing apparel  and  the  subject-matter  of  the  suit,  and  this

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according to the appellant’s counsel, indicated the ’person’ mentioned  in  Rule 1 of Order XXXIII which refers  only  to natural  person and not other juridical person.  It was also submitted  by  the appellant’s counsel that under Rule 3  of Order  XXXIII, the application to sue as an indigent  person shall  be presented to the Court by the applicant in  person unless  he is exempted from appearing in court in which case the  application  may be presented by an  authorised  agent. According  to  the  appellant’s counsel,  a  public  limited company   being   a  juristic   person  cannot  present   an application  in accordance with Rule 3 of Order XXXIII.   It was  submitted  that  under  Rule  3,  the  person  who   is presenting  the  application  must be such  person  who  can answer  all  material questions relating to the  application and  therefore,  the  scheme  of Order  XXXIII  of  the  CPC envisages  only  a  natural  person to file  a  suit  as  an indigent person.

   The  counsel  for  the respondent, on  the  other  hand, contended that a suit can be filed as an indigent person not only by natural persons but also by all juristic persons who are  permitted  to  file a suit in that  capacity.   It  was contended  that  Order  XXXIII  is  a  benevolent  provision intended  to  help the litigants who are unable to  pay  the court  fee at the initial stage and that the said  provision is  to be construed liberally.  It was submitted that when a company,  firm, deity, etc.  are permitted to file a suit in their  juristic capacity, there is no reason why they should not be allowed to sue as an indigent person.  Counsel argued that  the  definition of the word ’person’ contained in  the General  Clauses Act will apply and that extended meaning is to  be attributed to the word ’person’ referred to in  Order XXXIII.

   Reference  was  made  to  series  of  decisions  on  the subject.  A survery of the various decisions would show that the  preponderance  of  the view is that the  word  ’person’ referred to in Order XXXIII includes a juristic person also. The  context  in  which the word ’person’ is used  in  Order XXXIII would also indicate that a company also can sue as an indigent  person.  The relevant provision in the C.P.C.   is as follows :

   "1.   Suits  may  be  instituted in  forma  pauperis  -- Subject  to  the  following  provisions,  any  suit  may  be instituted by an indigent person.

       Explanation I --  A person is an indigent person , --

   (a)  if  he is not possessed of sufficient means  (other than  property  exempt  from attachment in  execution  of  a decree  and the subject-matter of the suit) to enable him to pay  the fee prescribed by law for the plaint in such  suit, or

   (b)  where  no  such  fee is prescribed, if  he  is  not entitled  to  property worth one thousand rupees other  than the  property  exempt  from  attachment in  execution  of  a decree, and the subject-matter of the suit.

   Explanation  II  -- Any property which is acquired by  a person  after  the  presentation  of  his  application   for permission  to  sue  as an indigent person, and  before  the decision  of the application, shall be taken into account in considering  the question whether or not the applicant is an

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indigent person.

   Explanation  III  --  Where  the  plaintiff  sues  in  a representative  capacity,  the  question whether  he  is  an indigent  person  shall be determined with reference to  the means possessed by him in such capacity."

   One  of the earliest decisions is AIR 1918 Madras 362  [ Perumal    Koundan    vs.     Tirumalrayapuram   Jananukoola Dhanasekhara   Sanka  Nidhi  Ltd.].    There,  the   company registered under the Companies Act went into liquidation and an   official  liquidator  was   appointed.   The   official liquidator  applied under Order XXXIII Rule 1 to file a suit on  behalf  of  the company in forma  pauperis  against  the petitioner  therein.  The petitioner raised objections  that the  company  could  not  file a  suit  in  forma  pauperis. Repelling this contention, the Division Bench held:

   "We  are  unable  to accept this contention.   The  word ’person’  is not defined in the Code of Civil Procedure  and consequently   the  definition  of   the  word  ’person’  as including  any Company or Association or body of individuals whether  incorporated or not, in the General Clauses Act  [X of  1897] would apply unless there is something repugnant to the subject or context."

   The  petitioner therein had raised a contention that the unamended  Explanation  to  Rule 1 of Order  XXXIII  allowed deduction  of the value of wearing apparel only which  means that if the applicant had wearing apparel, he can deduct its value.   The Court held that it cannot be construed to  mean that only persons who in law can possess wearing apparel can sue as paupers.

   In  AIR  1961 Bombay 1 [ Gendalal Cotton Mills  Ltd.   & Anr.   vs.   Basant  Kumaribai & Ors.], the  learned  Single Judge  of the High Court held that the word ’person’ in  the Explanation  to  Order XXXIII, Rule 1 includes a natural  as well   as  juristic  person.    The  Learned  Judge  further explained that the impossibility of a corporation presenting an  application  before  the  Court  in  person  is  not   a circumstance  to justify the inference that the  Legislature did not intend to extend the provisions of Order XXXIII Rule 1 to Corporations.

   In  AIR  1951 Hyderabad 124 [ Syed Ali vs.   The  Deccan Commercial Bank Ltd.], it was held as under :

   "The  Legislature while passing the Civil Procedure Code had  before it the definition of ’person’ in General Clauses Act.   Now,  is there anything repugnant in the  Code  which makes the definition of ’person’ inapplicable to ’person’ in O.33  or  is the explanation of ’person’ in the Code  merely illustrative  without  being  exhaustive?    No  doubt,  the expressions  ’apparel’  & ’examination of pauper  in  Court’ lend  colour to the view that the ’person’ contemplated is a natural  person  but there is nothing to suggest that  these words are meant to be exhaustive or to exclude categories of juristic persons who are entitled to sue though they are not natural persons."

   In  AIR  1961  Kerala 181 [ Mathew  vs.   Kerala  United Corporation  Ltd.],  it  was  held that  the  word  ’person’ mentioned  in Order XXXIII, Rule 1 should have the  extended meaning given to it in law.  Under O.  33, R.1, any suit may

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be  instituted  by a pauper.  Suits under the Code of  Civil Procedure can be instituted not only by natural human beings but  also by artificial persons such as a coproration or  an idol  and  also by persons like  executors,  administrators, trustees  and official receivers who represent the estate of another.   Prima  facie,  therefore, having  regard  to  the scheme  of the Code, the context and object of the enactment would  not  exclude juridical persons from the catgegory  of persons within the meaning of the said rule.

   The same view was held in AIR 1981 Calcutta 259 [ Jogesh Chandra  Bera & Ors.  vs.  Sri Iswar Braja Raj Jew Thakur ], where it was held that a deity as a juristic person can file a suit in forma pauperis under Order XXXIII, Rule 1.

   In  AIR 1935 Nagpur 209 [ Shree Shankarji Maharaj & Anr. vs.    Mt.   Godavaribai  ],  it   was  held  that  an  idol represented by a shebait, can file a suit in forma pauperis. It  was  held  that the word ’person’ in  Order  XXXIII  has reference to all those who have a right to institute a suit.

   In  AIR 1972 Allahabad 287 [ Moorti Shree Behari Ji  vs. Prem Das & Ors.], the same view was held.

   In  AIR 1965 Gujarat 207 [ Chimanlal Bhogilal Panchani & Anr.   vs.  Chandanben Manchand Shah & Ors.], it was pointed out  that  the  word ’person’ in the  Explanation  to  Order XXXIII,  Rule  1,  CPC being capable of both a  wide  and  a narrow meaning, should be given the construction which would advance   the  salutory  remedy   and  achieve  the  purpose underlying  enactment so that this facility for  institution of  a  suit without the payment of the requisite  court-fees can  be  properly  availed  of by  all  persons,  who  would otherwise  be  denied the remedy merely because they had  no funds to pay the requisite fees.

   In  AIR 1961 Patna 15 [ East Indian Coal Co.  Ltd.   vs. East  Indian  Coal  Co.   Ltd.  Workers’  Union  ],  it  was explained  that the defnition of ’person’ under the  General Clauses  Act can be applied to the word person occurring  in the  Explanation to Rule 1 of Order XXXIII and a  registered trade  union which is a body corporate within the meaning of Section  13  of the Trade Unions Act can, therefore, sue  in forma pauperis under Order XXXIII.

   Contrary view was taken by some of the High Courts.  One of  them  is  AIR  1930  Rangoon   259  [  S.M.   Mitra  vs. Corporation of the Royal Exchange Assurance ] wherein it was held  that the word ’person’ means a natural person, that is a  human being, and does not include a juridical person such as  a  receiver.  Therefore, a receiver appointed under  the Provincial  Insolvency  Act  cannot be allowed to sue  as  a pauper.   It  was observed by the then Acting Chief  Justice Heald :

   "It  seems  to  me that the provisions of  R.   3,  O.33 prescribing that an application for leave to sue as a pauper must be presented by the applicant in person is repugnant to the  view  that "person" in that rule was intended  to  mean anything  but a natural person or was intended to include  a juridical  or artificial person, and that the provisions  of Rr.4  and  7 regarding the examination of the applicant  and the reference to "wearing apparel" in the explanation to R.1 tend  in the same direction.  I would accordingly hold  that "person"  in  O.33 means a natural person, that is  a  human

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being  and  does  not include a juridical person such  as  a receiver".

   AIR  (38)  1951 Punjab 447, [ Associated  Pictures  Ltd. vs.   The  National Studios Ltd.], also held the  same  view that  the ’person’ in Order XXXIII means only an  individual person  and does not include a limited Company  incorporated under the Companies Act.

   AIR  1938  Calcutta 745 [ Bharat Abhyudoy  Cotton  Mills Ltd.   vs.  Maharajadhiraj Sir Kameswar Singh ] also was  of the  view that in order to decide whether a person  includes an  artificial person or a corporation or a company,  regard must  be  had to the setting in which the word  ’person’  is placed,  to the circumstance in which it is used, and  above all to the context in which it stands.

   In  AIR  1963  Manipur  40 [ Radha  Krishna  Devata  vs. Nathmal Mohta ], it was held that the word ’person’ in Order XXXIII  is  intended to apply only to a natural person or  a human being filing a suit and not to a juridical person like a deity, filing suit through a Shebait or trustee.

   Order  XXXIII, CPC is an enabling provision which allows filing  of  a suit by an indigent person without paying  the court fee at the initial stage.  If the plaintiff ultimately succeeds  in the suit, the court would calculate the  amount of  court fee which would have been paid by the plaintiff if he  had not been permitted to sue as an indigent person  and that amount would be recoverable by the State from any party ordered  by  the  decree  to pay the same.   It  is  further provided  that  when  the suit is dismissed, then  also  the State  would take steps to recover the court fee payable  by the  plaintiff and this court fee shall be a first charge on the  subject  matter  of  the  suit.  So  there  is  only  a provision  for  the deferred payment of the court  fees  and this  benevolent  provision  is intended to  help  the  poor litigants  who are unable to pay the requisite court fee  to file a suit because of their poverty.  Explanation I to Rule 1  of Order XXXIII states that an indigent person is one who is  not possessed of sufficient amount (other than  property exempt  from  attachment  in execution of a decree  and  the subject  matter  of the suit) to enable him to pay  the  fee prescribed  by  law  for  the plaint in such  suit.   It  is further  provided  that where no such fee is prescribed,  if such  person is not entitled to property worth one  thousand rupees  other  than the property exempt from  attachment  in execution fo a decree, and the subject matter of the suit he would  be  an indigent person.  Prior to the passing of  the CPC  (Amendment) Act 104 of 1976, the term "indigent person" had  a slightly different Explanation.  In that Explanation, it  was  stated  that a person is a pauper when  he  is  not possessed  of sufficient means to enable him to pay the fees prescribed  by law for the plaint in such suit, or where  no such  fee  is prescribed, if he is not entitled to  property worth  one  hundred rupees other than his necessary  wearing apparel  and the subject matter of the suit.  The expression ’other  than  his necessary wearing apparel’ was deleted  by CPC Amendment Act No.  104 of 1976.  These words had assumed some  importance in attributing the meaning ’natural person’ to  the word ’person’ mentioned in Order XXXIII.  A company, idol  or  other  juristic  person cannot  have  the  wearing apparel.   However,  as these words are now deleted  by  the Amending  Act  No.  104 of 1976, the present  Explanation  I need  alone  be  taken to construe the meaning of  the  term

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’person’  in  Order  XXXIII.  In the CPC,  though  the  term ’person’ occurs in several other parts, it is not defined in the  Code.  The term "decree holder" defined in Section 2(3) is as follows :

   "Decree-holder means any person in whose favour a decree has  been  passed or an order capable of execution has  been made."

   Under  Section  2(10), "judgment-debtor" is  defined  to mean  any person against whom a decree has been passed or an order  capable  of execution has been made.  Order I of  the CPC  deals with the parties to suit.  Rule 1 of Order I says who  are all the persons that may be joined as plaintiffs in one  suit.  Rule 3 states who are all the persons who may be joined as defendants.

   Any  juristic  person  such  as a company  or  idol  can maintain a suit.  These persons can be either decree-holders or  judgment-debtors  and in all these instances,  the  term ’person’  is used to describe such company or idol or  other juristic person as provided in the General Clauses Act.  The definition  of  the  term ’person’ is given in  the  General Clauses  Act according to which such term shall include  any company  or  association  or  body  of  individuals  whether incorporated  or not.  The said definition provides that the word  ’person’  would  include both natural  and  artificial persons.

   Under   Order  XXXIII,  the   petitioner  who  files  an application  has to present the application in person.  Rule 3  states that the person who is presenting the  application shall  be  in  a position to answer all  material  questions relating  to the application and he may also be examined  by the court.

   The  counsel  for the appellant argued that in  view  of this  provision,  the word "person" has to be understood  to mean a natural person, otherwise the company would not be in a position to present the application.  We do not think that such  a view is correct.  A company being a juristic person, it  would be represented by a person competent to  represent it.   It  is enough that a person competent to  represent  a company  need present the application under Rule 3 of  Order XXXIII.   Minors,  lunatics or persons under any  disability are  also entitled to file suit either represented through a guardian  or  next  friend.   They   can  also  maintain  an application  under Order XXXIII.  Under such  circumstances, the  real  petitioner  is  not the  person  to  present  the application,  but  the  guardian or the next friend  who  is competent  to  represent  such  petitioner  to  present  the application  under Rule 3, Order XXXIII.  Therefore, to give meaning to the word ’person’, the procedure prescribed under Rule 3 has no significance.

   Lord  Selborne in Pharmaceutical Society v.  London  and Provincial  Supply Association, 5 Appeal Cases 857, observed :

   "There can be no question that the word ’person’ may and ......prima facie does, in a public statute include a person in  law;   that  is , a corporation, as well  as  a  natural person.   But  although that is a sense which the word  will bear  in  law,  and  which as I said, perhaps  ought  to  be attributed  to  it in the construction of a  statute  unless

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there  should be any reason for a contrary construction,  it is  never  to  be forgotten, that in its popular  sense  and ordinary use it does not extend so far."

   Therefore, the word ’person’ has to be given its meaning in  the context in which it is used.  It refers to a  person who  is capable of filing a suit and this being a benevolent provision,   it  is  to  be   given  an  extended   meaning. Therefore, we are of the view that a public limited company, which  is  otherwise entitled to maintain a suit as a  legal person,  can  very well maintain an application under  Order XXXIII,  Rule  1  CPC.   We  hold  that  the  word  ’person’ mentioned in Order XXXIII includes not only a natural person but other juridical persons also.  The appeal is, therefore, without  any  merit  and dismissed without any order  as  to costs.