Associated Pictures Ltd. v. The National Studios Ltd.

Judgement

: A company known as the National Cine Studios Limited (in voluntary liquidation) presented a petition through its voluntary liquidator, Mr. Ram Partap Garg, in the Court of the Commercial Subordinate Judge at Delhi under Order XXXIII, Rule 1, Civil Procedure Code, for permission to bring a suit in forma pauperis for the recovery of Rs. 21,000/- against the present petitioner, a company known as Associated Pictures Limited of Calcutta. Apart from the question whether the applicant company has sufficient means to pay the requisite court-fee, the question also arose whether a limited company could be regarded as a person within the meaning of Order XXXIII, Rule 1, Civil Procedure Code. It does not appear that there has been any decision on this point by the High Court of Lahore or by this Court by which the learned Subordinate Judge could consider himself bound, and there are decisions of other High Courts in support of either side. From the judgment it seems that two decisions in favour of the view that a company is not a "person" within the meaning of Order XXXIII, Rule 1, Civil Procedure Code, were cited, whereas four decisions were cited to the contrary, in the circumstances the learned Subordinate Judge followed the view of what he considered to be the majority and held, it having been proved that the company in liquidation had not sufficient assets to pay the requisite court-fee, that the company was entitled to bring the suit in forma pauperis. The defendant company has come in revision against this order.

2. There is no doubt that in clause (39) of section 3 of the General Clauses Act of 1897 it is provided that the word "person" shall include any company or association or body of individuals, whether incorporated or not, but at the same time it is clear that this meaning is not intended to be of universal application wherever the word "person" appears in a statute, since the opening words of section 3 read:

"In this Act, and in all central acts and regulations made after the commencement of this Act, unless there is anything repugnant in the subject or context ........"

From this it is clear that where the word "person" appears in a statute, some regard must be had to the nature of the subject dealt with and to the context in deciding whether the word has the wider meaning mentioned in clause (39) or is restricted to its ordinary sense of an individual person. On a bare perusal of the relevant provisions of Order XXXIII of the Civil Procedure Code, I do not think there is any doubt that the word "person" is used in this Order, in the sense of an individual person. Rule 1 reads:

"1. Subject to the following provisions, any suit may be instituted by a pauper.

Explanation: A person is a "pauper" when he is not 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 one hundred rupees other than his necessary wearing-apparel and the subject-matter of the suit."

3. The latter part of the explanation could not be applied to a company by any stretch of imagination and I can hardly believe that any part of explanation could be intended to be inapplicable to any person referred to in the rule. Rule 2 merely prescribes that every application to sue as a pauper shall contain the particulars required in regard to a plaint in a suit and shall be verified in the same manner as a plaint. Rule 3, however, is more relevant to the present question as it reads:

"3. Notwithstanding anything contained in these rules, the application 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 authorized agent who can answer all material questions relating to the application, and who may be examined in the same manner as the party represented by him might have been examined had such party attended in person." It is difficult to interpret the word "person" as used in Rule 3 other than its ordinary sense of an individual, and this interpretation is confirmed by the words of Rule 4 which read:

"4. (1) Where the application is in proper form and duly presented, the Court may, if it thinks fit. examine the applicant, or his agent when the applicant is allowed to appear by agent, regarding the merits of the claim and the property of the applicant; (2) Where the application is presented by an agent, the Court may, if it thinks fit, order that the applicant be examined by a commission in the manner in which the examination of an absent witness may be taken."

4. There is, however, no doubt that this, to my mind, obvious interpretation of the meaning of the word "person" in this order has not been accepted by a number of learned Judges of various High Courts. In Perumal Koundan v. Venkatasami, AIR (5) 1918 Mad 362, Bake-well and Kumarswami Sastri jj. held that the word "person" in Order XXXIII has the same meaning as in the General Clauses Act, and that the Explanation to Rule 1 simply allows deduction of the value of wearing-apparel where the applicant has such apparel find cannot be construed to mean that only persons who, in law, can possess wearing-apparel, can sue as paupers. The ruling in Sivagami Ammal v. Gopala Swami Odayar, AIR (12) 1925 Mad 765, is not so much in point, as the facts were that after a suit had been instituted in forma pauperis the plaintiff who had been allowed to sue as a pauper died, and the question was whether his executor was liable to be dispaupered because personally he was not a pauper, and it was held that he was not liable to be dispaupered and made to pay the court-fee. In Mabia Khatun v. Satkari, AIR (14) 1927 Cal 309, it was held that when a plain till sues in a representative character, such as a mutwalli, trustee, or a shebait, unless it is shown that the plaintiff has in his possession property belonging to the wakf estate or trust or the idol for whom he sues, sufficient to enable him to pay the requisite court-fee prescribed by law, he, may be allowed to sue as a pauper even if it is shown that he has sufficient personal property of his own. It was also observed that the capacity of a person suing in a representative character must be kept distinct from his personal capacity, and this was really the main question decided, the question whether the idol or trust on behalf of which the suit was being brought was a "person" or not within the meaning of Order XXXIII not being discussed at all. In Sripal Singh v. U. P. Cinetone Ltd., AIR (31) 1944 Oudh 248, Thomas C. j. and Misra j. held that a limited Company was a person within the meaning of Order XXXIII, Rule 1, and that the word "person" in this Order means a juristic person.

Similarly in D. k. Cassim and Sons v. Abdul Rahman, AIR (17) 1930 Rang 272, Das and Brown jj. held that a firm can be considered to be a "person" under Order XXXIII, rule 1. The authoritativeness of this decision, however, appears to me to be rather undermined by the fact that in S. M. Mitra v. Corporation of Royal Exchange Assurance, the same volume only a few pages away at page 259 there is a decision by Heald A. C. j. and Otter j. to the contrary, these learned Judges coming to the conclusion after full discussion of the matter that the word "person" in Order XXXIII means a natural person, that is a human being, and does not include a juridical person such as a receiver under the Insolvency Act. There is also a carefully considered decision of the Calcutta High Court reported as Bharat Abhyuday Cotton Mills Ltd., v. Kameshwar Singh, AIR (25) 1938 Cal 745 in which Costello and Biswas JJ. after considering in separate judgments the provisions of Order XXXIII and previous decisions on the point, held that the word "person" in Order XXXIII, rule 1 and also in Order XLIV, rule 1 does not include a limited company incorporated under the Companies Act and such a company can neither sue in forma pauperis nor prefer an appeal under Order XLIV, rule 1 in forma pauperis. With due respect to the learned Judges who delivered the decisions cited above on behalf of the respondent to the contrary. I do not think that there is any doubt that the view taken in the second of the Rangoon decisions and in the Calcutta decision was correct. The wording of section 3 of the General Clauses Act clearly indicates that the definitions and explanations which form the rest of the section are not universally applicable, and that in spite of these definitions and explanations the meaning of the words has to be construed in the light of the subject of the statute and the context in which the words are used, and to my mind the provisions of Order XXXIII leave no doubt that the word "person" in this part of the Civil Procedure Code means only an individual person.

5. I accordingly accept the revision petition with costs and set aside the order of the lower Court permitting the respondent company to sue in forma pauperis. The parties have been directed to appear in the lower Court on the 16th of July, 1951. I assess the costs at fifty rupees.

Petition allowed.

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