Bank of India Vs. Khader International
Construction & Ors  Insc 282 (8 May 2001)
Banerjee & K.G. Balakrishnan K.G. Balakrishnan, J.
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.
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.
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 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
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.
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.
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.
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 :
Suits may be instituted in forma pauperis -- Subject to the following
provisions, any suit may be instituted by an indigent person.
I -- A person is an
indigent person , --
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
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.
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.
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
this contention, the Division Bench held:
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.
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.
1951 Hyderabad 124 [ Syed Ali vs. The Deccan Commercial Bank Ltd.], it was held
as under :
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 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.
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.
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.
held that the word 'person' in Order XXXIII has reference to all those who have
a right to institute a suit.
1972 Allahabad 287 [ Moorti Shree Behari Ji vs. Prem Das & Ors.], the same
view was held.
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.
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.
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 :
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 being
and does not include a juridical person such as a receiver".
(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
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.
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.
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 '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 :
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.
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.
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.
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
in Pharmaceutical Society v. London and
Provincial Supply Association, 5 Appeal Cases 857, observed :
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 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.
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.