TMI Blog1960 (1) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... s a pauper and dismissed the application made before it by the official liquidators for being permitted to institute a suit on behalf of the petitioners, the Gendalal Cotton Mills Ltd. Mr. H.R. Gokhale, who appears for the petitioners, relied strongly upon the view taken by the High Court of Madras in Swaminathan v. Official Receiver, Ramnad ILR [1937] Mad. 784 (FB) , and Perumal Goundan v. Thirumalaraya-puram Jananukoola Dhanasekhara Sangha Nidhi [1918] ILR 41 Mad. 624, as well as the view taken by the Hyderabad High Court in Syed Ali v. Deccan Commercial Bank AIR 1951 Hyd. 124 and contended that a corporation being a person in the eye of the law is entitled to the benefit of the provisions of Order XXXIII, rule 1, of the Civil Procedure Code, and to institute a suit in forma pauperis. He also referred to three other decisions which support the aforesaid contention. Two of those cases are Sripal Singh v. U.P. Cinetone Ltd. AIR 1944 Oudh 248 and Cassim Sons v. Abdul Rehman AIR 1930 Rang. 272 . Before examining the decisions upon which Mr. Gokhale relies, I think it would be better to consider those decisions which have found favour with the court below ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms to me that Lord Blackburn's observations about the flimsiness of the presumption cannot be imported for considering how the word ' person' occurring in the Indian statute is to be interpreted. According to the definition contained in the General Clauses Act, the word 'person' wherever occurring in an Indian statute, shall, subject to the context, include any company or association or body of individuals whether incorporated or not. According to the English definition contained in the Interpretation Act that word shall, unless the contrary intention appears, include a body corporate. It will thus be seen that the inclusion of a body corporate within the expression "person" is to be presumed under the English statute, unless a contrary intention appears. Whereas under the General Clauses Act the expression shall include any company or association or body of individuals whether incorporate or not. The language used in the General Clauses Act is much stronger than that used in the Interpretation Act and, therefore, a strong case has to be made out for not according to the word "person" the full meaning which is given to it in the definition. In the other English decision, Charles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Order III of the Civil Procedure Code and appearing by a pleader or recognized agent instead of being present personally. It does not cover cases where from the nature of the case physical presence is impossible or where the law, owing to any disability, directs that all acts required by the Code should be performed by a next friend. We are of opinion that there is nothing in rule 3 to prevent an official liquidator from appearing and presenting the petition." Though this decision was cited before the learned judges of the Calcutta High Court they have not considered the aforesaid observations of the Madras High Court. In my opinion these observations of the Madras High Court are a good and sufficient answer to the argument which was advanced both before that High Court and the Calcutta High Court to the effect 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. As already stated the learned judges of the Calcutta High Court have relied upon the decision in Mitra v. Corporation of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... educt anything on account of wearing apparel and will not be a pauper if it has property worth Rs. 100 and the suit is one for which no fee is prescribed." The third and last decision upon which the court below relies is that of Associated Pictures Ltd. v. National Studios Ltd. AIR 1951 Punj. 447 This decision is based upon the two decisions referred to above and does not contain anything new on the point. It seems to me that the view taken by the Madras High Court in Perumal Goundan v. Thirumalarayapuram Jananukoola Dhanasekhara Sangha Nidhi [1918] ILR 41 Mad. 624 which also was a case where an application under Order XXXIII, rule 1, was made on behalf of an incorporated company by an official liquidator is the correct one. This decision as well as the decision in Mitra v. Corporation of Royal Exchange Assurance AIR 1930 Rang. 259 and several other decisions were considered by the Full Bench of the Madras High Court in Swaminathan v. Official Receiver, Ramnad ILR [1937] Mad. 784 and it was held that the word "person" occurring in the Explanation to Order XXXIII, rule 1, would include both natural and legal persons, and, therefore, an official receiver is a pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Legislature does not make any distinction between one litigant and another provided those conditions are fulfilled." These observations have my respectful concurrence. Two more cases referred to by Mr. H. R. Gokhale, that is, Sripal Singh v. U.P. Cinetone Ltd. AIR 1944 Oudh 248 and Cassim Sons v. Abdul Rahman AIR 1930 Rang. 272 , proceed more or less on the same reasoning as the other Madras and Hyderabad cases referred to above. The learned judge of the court below has referred to a decision of this court in Manaji Rajuji ( Rao Saheb ) v. Khandoo Baloo [1911] ILR 36 Bom. 279 . That was a decision of a single judge of this court on the original side. In that case the learned judge has expressed the view that: "The privilege of maintaining a pauper suit is a personal privilege granted to people who have no means of carrying on or continuing litigation, and there seems to be no authority whatever for holding that the representative of a pauper is entitled to continue the suit of his testator or testatrix in forma pauperis, even though admittedly he is not a pauper, simply because his testator or testatrix was a pauper." This case is distinguishable on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permanent advance or other fund provided by the Central Government, and the expenses so incurred shall be recouped out of the assets of the company in priority to the debts of the company." (Proviso is omitted as it is not material). It is sufficient to say that this is merely an enabling rule and it does not in any way affect the rights which the corporation may have under the Code of Civil Procedure to institute a suit. Then Mr. Chattrapati contended that under section 280 of the old Companies Act a defendant is entitled to move the court for requiring a limited liability company to furnish security for costs and that it will not be possible to secure compliance with such a rule if the company were allowed to sue as a pauper. All that I need say about this argument is that the provisions of section 280 do not either expressly or by implication take away the right conferred by Order XXXIII, rule 1, Civil Procedure Code. It may be that a party may not be able to obtain security for costs under section 280 from a company which had been permitted to sue as a pauper but those provisions merely confer a power upon a court to require security to be given in appropriate cases and do ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
