Syed Ali v. The Deccan Commercial Bank, Limited

1. This is deft's appeal against a decree for money due on account, passed against him in a suit by the Deccan Commercial Band Ltd.

2. Appellant contends that the pltf., being a Joint Stock Company incorporated under the Hyderabad Companies Act, cannot sue as a pauper under the provisions of the Hyderabad Code of Civil Procedure., corresponding to the provisions of O. 33 of the Indian Code. Since the provisions referred to are the same in both the Codes we will refer to the Indian Code in this judgment. The other contention is that the suit account is not mutual open & current account within the meaning of the Limitation Act & that the suit should be held to be barred by time. We will consider the objection that the pltf. company cannot sue as a pauper. The company has gone into liquidation & it has been held that it is not possessed of sufficient assets to pay the court-fee. The objection taken is that pltf. is not a natural person & that O. 33 contemplates only natural persons ??? excludes juridical persons from its purview. O. 33, R. 1 is as follows;

“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 much suit, or, where do such fee is prescribed, when he is not entitled to property worth one hundred rupees other than his necessary wearing apparel it the subject-matter of the suit.”

3. The appellant emphasises the words ‘person’, ‘him’ & ‘his necessary wearing apparel’. R. 3 lays down:

“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 any be presented by an authorised agent who can answer all material questions relating to the application, & who may examined in the same manner as the party represented by him might have been examined had Each party attended in person.”

4. The appellant lays emphasis on the words ‘by the applicant’, ‘in person’ & ‘unless he is exempted from appearing in Court’ & ‘had such party attended in person.’ In R. 4, cl. (1) we find:

“Where the application is in proper form & duly presented, the Court may, if it thinks fit examine the applicant.”

5. Emphasis is laid on the words “examine the applicant.” Emphasis is also laid on the provisions in sub-r. (2) that the ‘applicant be examined by a commission’. R. 7 also provides for examination of the applicant & emphasis is also laid on the provisions of ‘examination of the applicant.’

6. It is argued from these provisions that the Legislature contemplates only a natural person. There are two Division Bench rulings, reported in Mitra v. Corporation of Royal Exchange Association, A.I.R (17) 1930 Rang. 259; Bharat Abhyudor Cotton Mills Ltd. v. Kameswarsing, A.I.R (25) 1938 Cal. 945 Supporting this argument. But there is an earlier Division Bench ruling of the Rangoon High Court reported in Cassion & Sons v. Abdul Rahman, A.I.R (17) 1930 Rang. 272, which was decided on 12-11-1929 while A.I.R 1930 Rang. 259 was decided on 26-3-1930. This earlier ruling was not brought to the notice of their Lordships while deciding the case reported at page 259. In A.I.R (17) 1930 Rang. 259, it was held that an ‘Official Receiver’ becomes the legal owner of the estate of the insolvent & that consequently he could not sue in forma pauperis on behalf of the insolvent estate, when he himself was possessed of sufficient means to pay the court-fee. In A.I.R (17) 1930 Rang. 272, a firm filed a suit claiming damages in respect of wrongful acts committed by the deft. In the course of the suit, the firm was adjudged insolvent & the Official Liquidator took possession of the assets of the firm. The suit being for damages in respect of wrongful acts was not continued by the Official Liquidator as the claim for damages did not vest in him. The firm applied for leave to appeal as a pauper. The Court held that the firm, not having any assets, out of which the court-fee could have been paid could appeal as a pauper, holding that the firm is a person within the meaning of O. 33, R. 1 read with Section 3 clause (39) of the General Clauses Act. It may, however, be pointed out that whereas in the decision reported in A.I.R (17) 1930 Rang. 259, there is a reference to the words ‘person’ & ‘wearing apparel found in O. 33, there is no reference to these words in A.I.R (17) 1930 Rang. 272, the decision having merely proceeded on a consideration of Section 3, clause (39) of the General Clauses Act. The other ruling, supporting the deft, is B.A Cotton Mills v. Kameshwar Singh, A.I.R (25) 1938 Cal. 745, wherein it has been laid down that all the provisions of O. 33 must be read not only with R. 1, but also with Rr. 3 & 4 & that a company incorporated under the Companies Act was not entitled to sue or appeal as a pauper. It may, however, be pointed out that the Full Bench ruling reported in Swaminathan v. Official Receiver, A.I.R (24) 1937 Mad. 549, which was decided on 15-3-1937 was not brought to the notice of their Lordships of the Division Bench deciding A.I.R (25) 1938 Cal. 745, on 30-6-1938. A.I.R (17) 1930 Rang. 259 was dissented from, in the Full Bench case reported in Swaminathan v. Official Receiver, A.I.R (24) 1937 Mad. 549, & it was decided in that case that an Official Receiver was a ‘person’ within the meaning of O. 33 entitled to sue as a pauper on behalf of an estate of which he is the Official Receiver.

7. It will thus be seen that the Rangoon case referred to, supporting the deft has not; noticed the earlier decision of the same High Court laying down exactly the contrary, on principle and the Calcutta case does not refer to the earlier Full Bench decision of the Madras High Court wherein the Rangoon ruling, supporting the deft., was dissented from, with the result that the Calcutta ruling strongly relies on the said Rangoon decision.

8. A later ruling reported in Sripal Singh v. U.P Cinetone Ltd., A.I.R (31) 1944 Oudh 248, refers to the Full Bench ruling of A.I.R (24) 1937 Mad. 549 & holds that a limited company could sue as a pauper through its liquidator. In the latest case reported in Vellingiri Naicken v. Patteswara swami Devasthanam, A.I.R (36) 1949 Mad. 714, a representative suit was filed on behalf of the inhabitants of a village in forma pauperis by certain persona. The learned Chief Justice of the Madras High Court held that the suit having been filed in a representative capacity on behalf of the villagers it could not be contended that all of them were paupers & that the suit could not be filed in forma pauperis. In Shree Shankarji Maharaj v. Mt. Godavaribai, A.I.R (22) 1935 Nag. 209, the suit was filed on behalf of idol in forma pauperis & it was held that the suit could be filed. In Perumal Koundan v. Tirumalrayapuram Jananukoola Dhanasekhara Sanka Nidhi Ltd., 41 Mad. 624, a suit was filed by a liquidator in forma pauperis & was allowed.

9. We are thus faced with authorities supporting both the views (1) that O. 33 applies only to natural persons on a strict construction of the terminology used therein & (2) that O. 33 considered in the light of principles of jurisprudence & the definition of the word ‘person’ in General Clauses Act, would include juridical persons also.

10. There is authority for the proposition that the Code of Civil Procedure. is not exhaustive. (Hukumchand v. Kamalanand, 33 Cal. 927). In interpreting a statute the principle has to be borne in mind that the Legislature is not capricious but that when it confers a right, it should be presumed that the right is conferred not only to a few persona entitled to that right, but that the right is conferred to all persons entitled to it. The right to sue in forma pauperis is a privilege given to a litigant provided certain conditions are fulfilled. Hence it should be presumed that every litigant coming within those conditions is entitled to the benefit of the privilege & the Legislature does not make any distinction between a litigant & another provided those conditions are fulfilled. In Pharmaceutical Society v. London & Provincial Supply Association, (1880) 5 A.C 857, pp. 861 & 862, Lord Chancellor Selborne says:

“There can be no question that the word ‘person’ may, & I should be disposed myself to say prima facie does, in a public statute include & 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 contraction of a statute unless there should be any reason for a contrary construction, it is never to be forgotten that in its popular sense & ordinary use, it does not extend so far.”

11. In the same case at p. 869, Lord Blackburn says:

“The word ‘person’ may very well include both a natural person (a human being) & an artificial person (a corporation). I think that in an Act of Parliament unless there be something to the contrary probably (but that I should not like to pledge myself to) it ought to be held to include both. I have equally no doubt that in common talk the language of men, not speaking technically a person, does not include an artificial person, that is to say, a corporation. It is plain that in common conversation and ordinary speech a ‘person’ “would mean a natural person. In technical language it may mean the artificial person: in which way it is used in any particular Act must depend upon the context & the subject-matter. I do not think that the presumption that it does include an artificial person, a corporation, (if that is the presumption) is at all a strong one. Circumstances and indeed circumstances of a slight nature in the context might show in which way the word is to be construed in an Act of Parliament whether it is to have the one meaning, or the other. I am quite clear about this that whenever you can see that the object of the Act requires that the word ‘person’ shall have the more extended or the less extended sense, then, whichever sense it requires, yon should apply the word in that sense & construe the Act.”

12. Investigating the legal conception of personality, Salmond in his Jurisprudence, Edn. 9 at p. 417 & onwards says:

“It is not permissible to adopt the simple device of saying that a person means a human being for even in the popular or non-legal use of the term there are persons who are not men, Personality is a wider & vaguer term than humanity and in the law this want of coincidence between the class of persons & that of human beings is still more marked. In the law there may be men who are not persons; slaves, for example, are destitute of legal personality in any system which regards them as incapable of either rights or liabilities. Like cattle, they are things & the objects of right; not persons & the subjects of them. Conversely there are, in the Jaw, persons who are not men. A joint took company or a municipal corporation is a person in legal contemplation. It is true that it is personality, not human nature, that is fictitiously attributed by the law to bodies corporate…. So far as legal theory is concerned, a person is any being whom the law regards as capable for rights or duties. Any being that is so capable is a person, whether a human being or not, & no being; that is not so capable is a person, even though he be a man. Persons are the substances of which rights and duties are the attributes. It is only in this respect that persons possess juridical significance, & this is the exclusive point of view from which personality receives legal recognition.

A person then, may be defined, for the purposes of the law, as any being to whom the law attributes & capability of interests & therefore, of rights, of acts & therefore of duties.

Persons as so defined are of two kinds, distinguishable as natural & legal. A natural person is a being to whom the law attributes personality in accordance with reality & truth. Legal persons are beings, real or imaginary, to whom the law attributes personality by way of fiction, when there is none in fact Natural persons are persons in fact as well as in law; legal persons are persons in law but not in fact” (S. 108).

13. Again at p. 424 he says

“It often happens that a single human being possesses a double personality. He is one man, but two persons…. In one capacity, or in one right as English Lawyers say, he may have legal relations with himself in his other capacity or right…. This double personality exists chiefly in the case of a trusteeship.” (S. 112).

14. Also at p. 425 be says:

“A legal person is any subject matter to which the law attributes a merely legal or fictitous personality. This extension, for good & sufficient reasons, of the conception of personality, beyond the limits of fact this recognition of persons who are not men, is one of the most noteworthy feats of the legal imagination.”

15. Domat in Civil Law, chap. 12, S. 17 lays down:

“Since laws are general rules, they cannot regulate the time to come so as to make express provision against all inconveniences, which are in inite in number, & so that their dispositions shall express all the cases that may possibly happen. It is the duty of the law giver to ??? only the most natural & ordinary events, & to ??? his dispositions in such a manner as that, without ??? into the detail of singular cases, he may establish rules common to the a all; & next, it is the duty of the Judges to apply the laws, not only to what appears to be regulated by their express dispositions but to all the cases to which a just application of them may be made, & which appear to be comprehended either within the express sense of the law, or within the consequences that may be gathered from it.”

16. In Essoo Bhayaji v. The Steamship ‘Savidri’, 11 Bom. 133, at pp. 137 and 138 Farreu J. observes:

“The construction of a statute is to be made of all the parts together and not of one part only by itself. Such a ??? is always indispensable even when the words are plainest for the true meaning of any passage is chat which best harmonises with the subject & with every other passage of the statute.”

17. We may also observe that the words “unless there is something repugnant in the subject or context” in the definition section 2 in the CPC have been inserted to give a wider latitude in interpretation than strict adherence to the definitions would involve and the word ‘person’ is not even defined in S. 2 of the Code.

18. Even assuming for a moment that the word ‘person’ in O. 33 does not include a corporation, still we have to bear in mind that the concession of filing a suit in forma pauperis could not have been intended by the Legislature capriciously to be conferred on one set of litigants & denied to others (corporations) though they satisfy the conditions. Such a strict interpretation would attribute discrimination & caprice to the Legislature. Consequently, even if it be assumed that there is no provision in the Code laying down a procedure for a corporation to file a suit in forma pauperis on general principles of justice, equity & good conscience, the provisions of the Code applicable to natural persons, suing as paupers will apply to such corporations or juristic persona subject to the circumstances of the case. Where there is no specific provision in the Code it is the duty of the Court to act according to justice, equity & good conscience & that purpose is served by applying the provisions to analogous cases as for as circumstances permit.

19. Applying these principles we have to see whether the definition of ‘person’ in the General Clauses Act & the explanation of ‘person’ in O. 33, R. 1 could be reconciled or whether the definition in the General Clauses Act is excluded by the explanation in the Code. It is also noteworthy that ‘parson’ is not one of the words defined in the Code in the definition S. 2, but it is only explained in O. 33, R. 1. An explanation has not the same merit as a definition. Section 3 read with Section 3, clause 39 of the General Clauses Act X [10] of 1897 lays down that in this Act & in all Acts made after the commencement of this Act, unless there as anything repugnant in the subject ‘person’ includes any company or association or body of individuals whether incorporated or not. The present Code of Civil Procedure. which is consolidating & amending Act was passed on 21-3-1908 coming into force on the first day of January 1909. We can, therefore, presume that the Legislature while passing the Code of Civil Procedure. had before is 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 noshing 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. If it be interpreted that the provisions relating to ‘examination of the pauper in Court’ & ‘wearing apparel’ will only apply when the pltf. is a natural person & will not apply to juristic persons, it will reconcile the definition of ‘person’ in the General Clauses Act with the explanation of ‘person’ in the Code. We also consider that the word ‘person’ used in several places in the Code is not confined only to natural persons just as the expression ‘he’ does not include only males. As instances we may note that in S. 2, cl. (3) of the Code, ‘decree-holder’ has been explained as meaning ‘any person’ in whose favour a decree has been passed or an order capable of execution has been made. Also S. 2, cl. (10) defines ‘judgment-debtor’ as meaning ‘any person’ against whom a decree has been passed or an order capable of execution has been made. So also S. 2, cl. (11) defines ‘legal representative’ as meaning a ‘person’ who, in law, represents the estates of a deceased. Such instances can be multiplied. Likewise in the Limitation Act ‘pltf.’ & ‘deft.’ have been defined as ‘person’. These instances of ‘person’ not only have been held to include natural persons, but also to include juristic persons. The crucial test seems to be, can a suit be filed by the pltf. be he a natural person or a juristic person. If so, & if such pltf. has no sufficient means to pay court-fee O. 33 will apply, as its object is to facilitate the filing of a pauper Suit & as principle that facility should be given to all litigants entitled to it.

20. In the result we hold that the pltf. is entitled to sue as a pauper though it is a limited company. As regards the other contention that the suit account was not mutual current & open account within the meaning of the Limitation Act, we find that the deft, had an account with the pltf, bank; that he was drawing monies some times in excess of his funds and that he was also crediting monies in his said account sometimes in excess of the amount then due by him. The condition for the applicability of Article 85 is that there should be a cross-claim arising out of a course of dealings which evidences or is referable to an intention to set off. It refers to cases where the course of dealings between the parties has been of such a nature as to give rise to reciprocal demands between them, i.e, the dealings between the parties must have been of such a nature that the balance might some times be in favour of one party & some time in favour of the other. In the result this contention of the deft, also fails.

21. The result is that the appeal is dismissed & the decree of the lower Court is confirmed with costs throughout & with interest on the decreed amount from date of suit at 6% per annum till date of realisation. The court, fee payable to Govt. will be a first charge on the amount recoverable from the deft. & may be recovered by the Govt. by the execution of the decree.

22. Appeal dismissed.