Skip to content


Mathew Vs. Kerala United Corporation Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. No. 155 of 1959
Judge
Reported inAIR1961Ker180
ActsCode of Civil Procedure (CPC) , 1908 - Order 33, Rules 1 and 3
AppellantMathew
RespondentKerala United Corporation Ltd.
Appellant Advocate Mathew Muricken and; V.S. Moothathu, Advs.
Respondent Advocate C.K. Sivasankara Panicker and; P.G. Parameswara Panicker, Advs.
DispositionRevision dismissed
Cases ReferredMaharaj v. Mt. Godavaribai
Excerpt:
.....fixed in that..........case the applicant was an official receiver who applied to sue in forma pauperis. it was held: 'word 'person' in order 33 means 'natural person', that is, a human being and does not include a juridical person such as a receiver and therefore a receiver appointed under the provincial insolvency act cannot be allowed to sue as a pauper, where the receiver himself is possessed of sufficient funds to carry on the suit, though the estate of which he is the receiver may not be sufficient for that purpose'. one of the learned judges constituting the bench referred to rules 3, 4 and 7 of order 33, c,p.c., and thought that they indicated that it would be repugnant in the subject or context to attach a wider meaning to that word.3. a contrary view had been taken by a division bench of the same.....
Judgment:

Govinda Menon, J.

1. The point for decision in the Revision Petition is whether a company as a juridical person is entitled to sue in forma pauperis under Order 33, Rule 1, C.P.C.

2. The contention raised before us is that the terms of Order 33, Rule 1, C.P.C, confer the privilege of suing as a pauper only upon a 'person' and that the word must for the purpose of Order 33 mean only 'natural person' as distinguished from 'juridical persons' such as Corporations, Companies, Associations or idols. In support of this proposition reliance has been placed firstly upon the case reported in S. M. Mitra v. Corporation of Royal Exchange Assurance, AIR 1930 Rang 259. In that case the applicant was an official receiver who applied to sue in forma pauperis. It was held:

'Word 'person' in Order 33 means 'natural person', that is, a human being and does not include a juridical person such as a Receiver and therefore a Receiver appointed under the Provincial Insolvency Act cannot be allowed to sue as a pauper, where the Receiver himself is possessed of sufficient funds to carry on the suit, though the estate of which he is the Receiver may not be sufficient for that purpose'. One of the learned Judges constituting the Bench referred to Rules 3, 4 and 7 of Order 33, C,P.C., and thought that they indicated that it would be repugnant in the subject or context to attach a wider meaning to that word.

3. A contrary view had been taken by a Division Bench of the same High Court in an earlier case in D. K. Cassim and Sons v. Abdul Rahman, AIR 1930 Rang 272, where it was held that a firm can be considered as a person within the meaning of Order 33, Rule 1, C.P.C., having regard to the definition of that term in the General Clauses Act (X of 1897). Probably this decision was not brought to the notice of their Lordships when they decided the case in AIR 1930 Rang 259,

4. The next case cited for the petitioner is the case in Bharat Abhyudoy Cotton Mills v. Maharaja of Darbhanga, AIR 1938 Cal 745. That case arose under Order 44, Rule 1, C.P.C., and therein it was said that all provisions of Order 33 must be read together and so read the word 'person' in Order 33, Rule 1 and the same word in Order 44, Rule 1, C.P.C. does not include a limited company incorporated under the Companies Act.

In support of the view that it was not possible and competent for a company to sue as a pauper or to prefer an appeal as a pauper under the provisions of Order 44, Rule 1, C.P.C., it was observed that in the context in which the word 'person' occurred in Order 33, C.P.C., it was impossible to give it the extended meaning as contemplated by Section 3, Clause 39, General Clauses Act. Reference in this connection was made to the latter portion of the explanation attached to Rule 1, whereby the applicant is required to show that he is not entitled to the property worth Rs. 100/-other than his necessary wearing apparel.

It was further pointed out that under Rule 3 the application to sue as a pauper has to be presented to the court by the applicant in person and under Rule 4 an applicant may be examined by the court at the time when the petition is presented.

5. To the same effect is the decision in Associated Pictures Ltd. v. The National Studios Ltd,AIR 1951 Punj 447, All these cases proceeded upon the same grounds in order to limit the scope of Order 33, Rule 1, C.P.C.

6. The decision of this question turns upon the construction of Order 33, Rule 1, C.P.C. which runs as follows:

'Subject to the following provision, any suit may be instituted by a pauper.

Explanation : A person is a 'pauper' when he i3 cot possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit, or, where no such fee is prescribed, when he is not entitled to property worth Rs. 100 other than his necessary wearing apparel and the subject matter ot the suit'.

There, is no definition of 'person' in the Civil Procedure Code, Therefore the interpretation of the said term in the General Clauses Act would apply according to which a 'person' shall include any company or body of individuals whether incorporated or not. This shows that 'person' would include both natural and legal persons.

7. Lord Selborne pointed out in Pharmaceutical Society v. London and Provincial Supply Association (1880) 5 AC 857 at p. 861,

'There can be no question that the word 'person' may and ........ prima facie does, in a public statuteinclude 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 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'. The same view was taken by Lord Blackburn at pp. 868 and 869.

8. Unless therefore the context and the object of the enactment require otherwise, 'person' in Order 33, Rule 1, C.P.C., should have the extended meaning given to it in law. Under Order 33, Rule 1, any suit may 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 corporation 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 category of persons within the meaning of the said rule.

9. It is contended by reference to the necessary wearing apparel in the Explanation by the applicant in person that it can only contemplate a natural person. This contention has been considered by Kumaraswamy Sastry, J, in Perumal Goundan v. Tirumalrayapuram Jananukoola Dhanase-khara Sanka Nidbi Ltd., AIR 1918 Mad 362. Dealing with the argument with reference to the wearing apparel the learned Judge observes thus:

'The explanation simply allows deduction of the value of wearing apparel and can only mean that if the applicant has necessary wearing apparel he can deduct its value. We do not think it can be construed to mean that only persons who in law can possess wearing apparel, can sue as paupers.'

In regard to the physical presence of the applicant and his examination contemplated in the Code, the learned Judge observes:

'Rule 3, Order 33, C.P.C., in our opinion, only prohibits a pauper who is competent in law to appear in person from taking advantage of Rule 1 of Order 3,C.P.C. and appearing by a pleader or recognised agent instead of being present personally. It does not cover cases where from the nature of the case physical presence is impossible or where the law, owingto any disability, directs that all acts required by the Code should be performed by a next friend'.

It was therefore held that Order 33, C.P.C., applies to suits by companies and Nidhis and the latter can fake advantage of its position if they are paupers.

10. This view has been affirmed in the Full Bench decision in Swaminathan v. Official Receiver, Ramnad, AIR 1937 Mad 549 where the entire case Jaw has been discussed. Reference therein has been made to an earlier case of the Madras High Court holding the same view.

11. This view of the Madras High Court has been followed in Prabhu Lal v. Imamuddin, ILR (1954) 4 Raj 181, Syed Ali v. Deccan Commercial Bank Ltd., AIR 1951 Hyd 124; Sripal Singh v. U. P. Cinetone Ltd., AIR 1944 Oudh 248 and Shri Shankarj'i Maharaj v. Mt. Godavaribai, AIR 1935 Nag 209.

We are in respectful agreement with the view expressed in these decisions and we would hold that the company is entitled to sue in forma pauperis provided they are able to come within the definition of pauper within the meaning of Order 33, Rule 1.

12. Every plaintiff who institutes a suit in a court of law is required to pay the necessary court fee and under Order 7, Rule 11, C, P. C., the court is enjoined to reject an insufficiently stamped plaint, if the plaintiff fails to make good the deficiency within the time fixed in that behalf. Order 33, Rule 1. C. P. C., constitutes an exception inasmuch as a person is allowed to sue if he is a pauper without the payment of court fee provided he complies with certain formalities. As stated in AIR 1944 Oudh 248 :

'There is obviously nothing inherent in the nature of a juridical person to lead to an inference that the Legislature intended to deprive all plaintiffs other than natural persons from the benefit of the privilege conferred by this 'order'. We are reluctant to interpret the provisions of Order 33 in a way that would attribute a capricious preference of one class of pauper plaintiffs over another, unless we are forced to do so either by express words in the Code or by necessary intendment in its scheme. We can see no justification for the view that the Legislature intended to benefit natural persons alone as distinguished from those others who are obviously by virtue of Section 3, Clause 39, General Clauses Act, included in the term 'person'.'

The order of the Subordinate Judge is therefore correct and calls for no interference. The revision petition is dismissed, but there will be no Order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //