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Report No. 144

Chapter IX

Orders 31 To 40

9.1. Order 33, rule 1 and Corporations

9.1.1. Order 33, rule 1, of the Code of Civil Procedure, 1908, provides that a suit may be instituted by an indigent person (previously, a "pauper").

9.1.2. Question for consideration-

The question has arisen whether this rule applies to artificial (judicial) persons. There is a conflict of decisions on the point.

9.1.3. The controversy can be best illustrated by narrating the developments that took place in the High Court of Punjab, where a narrower view, taken by a single Judge, came to be later replaced by a wider view, taken by a Division Bench. According to an earlier Punjab case,1 the expression "person", for the purposes of Order 33, does not include a limited company.

This conclusion is supported by three main reasons. First, the Explanation to rule 1 speaks of "wearing apparel" and these are words which could not apply to a limited company. Secondly, Order 33, rule 3, provides for personal appearance in the court-which would not be appropriate for a company. Thirdly, Order 33, rule 4, speaks of "examining" the applicant, which also would not be appropriate in the case of artificial persons. This view was, however, later ,overruled.2

1. Associated Pictures Ltd. v. National Studies Ltd., AIR 1951 Punj 448 (Falshaw, J.) (Overruled in AIR 1960 Punj 73).

2. S.G. Sahib v. Harnam Singh, AIR 1950 Punj 73 (DB) (K.L. Gosain & Harbans Singh, 11.) overruling AIR 1951 Punj 448.

9.1.4. Overruling a single Judge ruling of 1951, the Punjab High Court1 in 1960 has, through a Division Bench ruling held, that "person" in Order 33 of the Code includes juristic persons (in that case, Gurudwara Sahib Kothi Begwal). The Division Bench relied on section 3(39), General Clauses Act, 1897, under which the expression "person" includes any company or association or body of individuals, whether incorporated or not. The Division Bench did not agree with the objection based on the word "apparel".

It pointed out, referring to Perumal v. Sankha Nidh Ltd., AIR 1918 Mad 362 (DB), that all that the Explanation means is, that if the appellant has the necessary wearing apparel, then the value thereof can be deducted in assessing the applicant's means. It also added, that in a Supreme Court case2 relating to the standing orders of an electric company, the Supreme Court had quoted, with approval, an English case,3 where it had been held, that a right of appeal conditional on the appellant's entering into a recognizance was available to a Corporation. This showed that requirements contemplating something personal did not come in the way of a corporation claiming the benefit of the main provision.

1. Ibid.

2. Nagpur Electric Light and Power Co. Ltd. v. Pathirai, AIR 1958 SC 658.

3. Gortis v. Kent Water Works Co., (1827) 108 ER 741 (Bayley, J.).

9.1.5. According to the Division Bench of the Punjab High Court, (1960), the condition regarding recognizance may be treated as inapplicable to corporations and the clause can be split up for the purpose. As regards Order 33, rule 3 which relates to "appearance", the Punjab Division Bench again pointed out (quoting the Madras case of 1918) that where, from the very nature of the party, the physical presence of the party is not possible, then the requirement for personal appearance would not apply.

9.1.6. The following courts (besides the Punjab High Court) have also held that Order 33 applies to artificial persons (Corporation and deities):

(a) Madras;1.

(b) Mysore2

(c) Oudh;3

(d) Rangoon;4

(e) Madhya Pradesh.5

1. Perumal v. Venkatesam, AIR 1918 Mad 362 (Bakewell and Kumaraswami Shastri, JJ.).

2. M.C. Chiknanjudappa v. D.K. Pillai, AIR 1955 Mys 128 (129), para. 4 (Hombe Gowda, J.).

3. Sripal Singh v. U.P. Cinetone, AIR 1944 Oudh 248 (Thomas, J.).

4. D.K. Cassim & Sons v. Abdul Rehman, AIR 1930 Rang 272 (Das & Brown, JJ.).

5. Nandkishore Mohanlal v. Jhunjhunwala, AIR 1990 MI' 331.

9.1.7. But, in a Calcutta case1 the negative view was taken on the subject, holding that Order 33, rule 1 does not apply to artificial persons.

1. Bharat Abhyudaya Cotton Mills v. Kameshwar Singh, AIR 1938 Cal 745 (Costello and Biswas, JJ.).

9.1.8. In a Manipur case,1(following the Punjab Single Judge case of 1951, but without noticing the Punjab Division Bench ruling of 1960), it was held that Order 33, rule 1, is confined to natural persons. In this judgment, stress seems to have been laid on the requirement of personal appearance and it was held that a deity cannot be allowed to sue as a pauper in the court. The court took the view that unless rules 1, 3 and 4 of Order 33 are amended by the legislature, it is not possible to hold, on the existing rules that a deity or an idol could file a suit through a she bait in forma pauperis.

1. Radha Krishna v. Nathmal, AIR 1963 Manipur 39 (41, 42), paras. 6, 13 (Thirumalpad, J.C.).



Conflicting Judicial Decisions pertaining to the Code of Civil Procedure Back




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