P L D 1972 Karachi 358 (PLP)

JwoWMT The applicant Is a private limited company and has filed a suit for the recovery of property and money under Order XXXIII, rule 1, C. P. C. in forma pauperis. A preliminary objection was taken that a company incorporated under the Companies Act cannot sue as forma pauperls. The entire dispute rests over the meaning of the word 'person' appearing in Order XXXIII, rule

1. It reads as under "(1) 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 paint in such suit, or. where no such fee Is prescribed, when he is not entitled to property worth one hundred rupees other than his necessary wearing apparel and the subject‑matter of the suit." It was contended by the learned counsel for the applicant that the word 'person' indicated a juridical person and, therefore, a corporation or a company as juridical person were entitled to sue in forma pauperls, but, on the other hand, it was contended by the respondents that this word did not Include a juridical person and, therefore, the provisions of Order XXXIII could not be extended to a company. The learned counsel for the parties sought in aid some authorities supporting their view but the consensus of the view is that a company can sue as forma pauperis under Order XXXIII. The word person has nowhere been defined by the Code of Civil Procedure and, therefore, reference for its meaning may be made to the General Clauses Act. Section 3 (39), General Clauses Act defines person as under "'person' shall Include any company or association or body of individuals, whether incorporated or not:" Thus It Is clear that the word 'person' includes a company and, therefore, the provisions of Order XXXIII are fully attracted unless the context of the object of the enactment requires otherwise. But In my opinion there is nothing In Order XXXIII which would make the definition of the word 'person' in the General Clauses Act repugnant to the provisions of the Order and thereby render it in applicable. This view finds support from a string of cases decided before partition and by Indian Courts after partition. These cases would be found in A I R 1918 Mad. 362, A I R 1937 Mad. 549, A I R 1951 Hyd. 124, A I R 1959 All. 540, A I R 19(0 Pb. 73, A I R 1961 Bom. 1, A I R 1961 Ker. 180 and A I R 1961 Pat.

15. The contrary view was taken in three authorities reported in A I R 1930 Rang. 259, A I R 1938 Cal. 745 and A I R 1951 Pb.

447. The view taken in these decisions was based on certain re quirements of Order X XXIII. It was pointed out that since the definition required to value the wearing apparel of the person seeking to be declared as pauper and a company could not possess wearing apparel it could not be covered by the explanation providing the definition of the word 'pauper'. The second ground that was taken was that rule 3 required the application to be presented by the applicant in person and further he had to be examined in Court and since the company being not a natural person could not perform these functions the provisions of Order XXXIII were not attracted. These questions were considered in the authorities favouring the view that the person occurring in Order XXXIII included the company and were over ruled. With due respect I fully endorse the view taken in those authorities. It may be further pointed that Rangoon High Court had taken a contrary view in A I R 1930 Rang. 272 and held that a firm was a person within the meaning of Order XXXIII, rule 1 and could file an appeal under Order XLIv, rule 1, C. P. C. as insolvent. The decision taken in A I R 1951 Pb. 447 was overruled in A I R 1960 Pb.

73. It is not necessary that the person who does not possess the wearing apparel cannot in law sue as pauper but what is intended Is that the value of the wearing apparel be determined in ascertain ing the means of the person. Similarly the personal appearance Is also not necessary as in law personal appearance can be exempted and a person can be permitted to appear through an agent. Take for instance the case of minors or persons of unsound mind. Although they cannot appear in person or be examined yet a suit on their behalf can be filed in forma pauperis. Considering the contrary views convassed before me I a of the view that the word 'person' used in Order XXXIII, C. P. C. b has the same meaning as given to it in section 3 (39) o the General Clauses Act and consequently the provisions of Order XXXIII are available not only to natural persons but also to other persons jurisdic or otherwise who are capable of bringing a suit. It cannot be disputed that a company is com petent to sue and be sued. In result I dismiss the objections. Application admitted.