UNION BANK OF INDIA v. KHADER INTERNATIONAL CONSTRUCTION AND ORS

Citation: [2001] 3 S.C.R. 580

Court: Supreme Court of India

Bench: U.C. BANERJEE, K.G. BALAKRISHNAN

Judgment text

) \ UNION BANK OF INDIA v. ~ KHADER INTERNATIONAL CONSTRUCTION AND ORS. MAY 8, 2001 [UMESH C. BANERJEE AND K. G. BALAKRISHNAN, JJ. ] Code ofCivil Procedure, 1908-0rderXXX/11, Rule 1 and 3~/ndigent person-Who is--Limited Company-Whether entitled to sue as an indigent person-Held, Yes- "Person" includes not only the natural person but other juridical persons also-General Clauses Act, 1896. Words and Phrases • "Person "-Meaning ofin the context ofOrder XXX/11, Rule 1 Code of Civil Procedure 1908. The issue involved in the present appeal was whether respondent-limited company was entitled to sue as an indigent pers<>n under Order xxxm, Rule ...... 0 i of the Code of Civil Procedure.

On behalf of the appellant it was contended that the word "person" ·referred to in Order xxxm, Rule I of the Code refers only to natural person and not other juridical person and therefore, respondent-company was not entitled to sue as an indigent person; that under Rule 3 of Order xxxm, the application to sue as an indigent person should be presented to the Court by the applicant in person and a Public Limited ·company being a juristic person cannot present an application in accordance with the said Rule; 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 xxxm of the Code envisages only natural person to file the suit as an indigent person.

On behalf of the respondent it was contended that a suit can be filed as an indigent person not only by natural persons but also by all juristic persons who were permitted to file a suit in that capacity; that Order XXXIII was a benevolent provision intended to help the litigants who were unable to ) pay the court fee at the initial stage and that the said provision was to be construed liberally; that_when a company, firm, deity, etc. were permitted to UNION BANK OF INDIA v. K. I. CONSTRUCTON 581 file a suit in their juristic capacity, there was no reason why they should not x be allowed to sue as an indigent person; that the definition ofthe word 'person' contained in the General Clauses Act would apply and that extended meaning was to be attributed to the word 'person' referred to in Order XXXIII. Dismissing the appeal, the Court HELD : 1. 1. The word 'person' mentioned in Order XXXIII ofthe Code of Civil Procedure includes not only natural person but other juridical persons also.

Therefore, respondent-limited company which is otherwise entitled to maintain a suit as a legal person can very well maintain an application as an indigent person under Order XXXIII, Rule 1 of the Code. (590-B] Peruma/ Koundan v. Tirumalrayapuram Jananukoo/a Dhanasekhara Sanka Nidhi Ltd. , AIR (1981) Madras 362; Genda/a/ Cotton Mills Ltd. and Am: v. Basant Kumaribai and Ors. , AIR (1961) Bombay 1; SyedAli v. The Deccan Commercial Bank Ltd. , AIR (1951) Hyderabad 124; Mathew v. Kera/a United Corporation Ltd. , AIR (1961) Kerala 181; Jogesh Chandra Bera and Ors. v. Sri lswar Braja Raj Jew Thakur, AIR (1981) Calcutta 259; Shri Shankarji Maharaj and Anr. v. Mt. Godavaribai, Am (1935) Nagpur 209; + Moorti Shree Behari Ji v. Prem Das and Ors. , Am (1972) Allahabad 287; Chiman/a/ Bhogila/ Panchani and Anr. v. Chandanben Manchand Shah and Ors. , Am (1965) Gujarat 207 and East Indian Coal Co. Ltd. v. East Indian Coal Co. Ltd. Workers Union, Am (1961) Patna 15, approved. S. M Mitra v.

Corporation ofthe Royal Exchange Assurance, AIR (1930) Rangoon 259; Associated Pictures Ltd. v. The National Studios Ltd. , AIR 38 (1951) Punjab 447; Bharat Abhyudoy Cotton Mills Ltd. v. Maharajadhiraj Sir Kameswar Singh, AIR (1938) Calcutta 745 and Radha Krishna Devata v. Nathma/ Mohta, AIR (1963) Manipur 40, disapproved. 1. 2. 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. In the CPC, though the term 'person' occurs in several other parts, it is not defined in the Code. 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 incorporate~ or not. The said definition provides that the word 'person' would include both natural t and artificial person. Any juristic person such as a company or idol can maintain a suit.

These persons can be either decree-holders or judgmentdebtors 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. [587-G; 589-B-A; 588-H] 7-- 2. A company being a juristic person, it would be represented by ~ 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 disa! Jility are also entitled to file suit either represented through a guardian or next friend. They can also maintain an application under Order x:xxm. 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,10 give meaning-to the word 'person', tht; procedure prescribed under Rule 3 has no significance.

[589-D-E] -- Pharmaceutical Society v. London and Provincial Supply Association, 5 Appeal Cases 857, referred to. ·D CIVIL APPELLATE JURISDICTION: Civil Appeal No. 943 of 1993. ,,!. _ From the Judgment and Order dated 20. 7. 92 of the Kerla High Court in C. RP. No. 139 of1992-B. · K. K. Venugopal, U. A. Rana, Rajesh Nair, for Mis. Gagrat and Co. , for the Appellant. T. L. Vishwanatha Iyer, T. G. Narayanana Nair and Ramesh Babu M. R. for M. A. Firoz for the Respondents. The Judgment of the Court was delivered by K. G. BALAKRISHNAN, 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, K()Chi, and sought permission to sue as an indigent person. The appellant herein raised objections and contended that the plaintiff .

A 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 UNION BANK OF INDIA v. KJ. CONSTRUCTON [BALAKRISHNAN, J. ] 583 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 l, 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 I of Order XXXIII, CPC, an 'indigent person' was mentioned in the Explanation to Rule I 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 according to the appellant's counsel, indicated the 'person' mentioned in Rule I 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 io 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 anauthorised 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 ofOrder 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 survey 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 irt the C. P. C.

is as follows : \.. _ "I. '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 subjectmatter 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 j; property worth one thousand rupees other than the property exempt from attachment in execution ofa decree, and the subject-matter ofthe 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 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 [Peruma/ Koundan v. Tirumalrayapuram Jananukoola Dhanasekhara Sanka Nidhi Ltd. ]. There, the company registered under the Companies Act went into 1 liquidation and an official liquidator was appointed. The official liquidator applied under Order XXXIII Rule I to file a suit on behalf of the company informa 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 ofindividuals 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. & Am: v. Basant Kumaribai & Ors. ], the learned Single Judge ofthe 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 v. 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 0. 33 or is the explanation of 'person' in the Code merely illustrative without being exhaustive?

No doubt, the expressions 'apparel' & 'examination ofpauper 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 v. Kera/a United Corporation Ltd. ], ' ' · it was held that the word 'person' mentioned in Order XXXIII, Rule . l should have the extended meaning given to it in law. Under 0. 33, R. l, 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 -· Therefore, we are ofthe view that a public limited company, which is otherwise \ entitled to maintain a suit as \ legal person, can very well maintain an application under Order xxxm, Rule I CPC.

We hold that the word 'person' I B mentioned in Order XXXIII includes nof only a natural person but other juridical persons also. The appeal is, therefore, without any merit an:l dismissed without any order as to costs. / S. Y. K Appeal dismissed. t