ABDUL HAYEB KURESHI, J.-This appeal under clause 10 of the Letters Patent has been filed against an order of my learned brother Ghulam Rasool K. Sheikh, J., who in -Misc. Appln. No. 7/1971 has held that a private company can file a suit in forma pauperis. A suit was filed by Messrs J. Tyler & Co.
Ltd., against United Bank Ltd., the present appellant, Rizvi Traders Ltd, and two others. An objection was raised before the Registrar (C. S,) to the effect that a limited company could not file a suit in forma pauperis and since there were conflicting authorities on the point and a total absence of authoritative decision of any superior Court of Pakistan, the matter was referred to the Court for decision, The learned Single Judge after hearing the parties came to the conclusion that the word "person" as used in Order XXXIII, C. P. C. Applies not only to natural persons but also to juristic persons. Aggrieved by this order, the appeal came to be filed. Mr. Farhat A.I has appeared for the appellant, whereas Mr. Mansoor Ahmad Khan and Mr. K. A. Ghani have appeared for respondents.
2. The contention of the learned Advocate for the appellant is that a company is not a "person" within the meaning or Order XXXIII of the Civil Procedure Code, and therefore, could not sue as a pauper. The learned Advocate has stated that interpretation of rule 3 of Order XXXIII supports such conten--petition because a company by its very existence and nature can neither present a plaint nor answer questions as contemplated by the said rule. Reliance has also been placed on the explana--petition appended to rule 1 of Order XXXIII, C. P. C. Which provides that a person entitled to property worth one hundred rupees ether than his necessary wearing-apparel could not sue as a pauper. The contention further is teat the opening words of rule 3 being "notwithstanding anything contained in these rules," the provisions of rule 2 are of mandatory nature so that if any person is unable to present the plaint in person or is unable to answer material questions, a suit in forma pauperis does not lie. The contention of the learned Advocate further is that a company can file a suit in forma pauperis only through the official liquidator but a Director cannot file a suit in forma pauperis. The contention when analysed amounts to this that a suit in forma pauperis can be filed by a company only when liquidation proceedings or wind--ing up proceedings start.
3. Mr. Mansoor Ahmed Khan has on the other hand raised contention that a Director of a company has the power of main--taining an action on behalf of the company because Article 71 of Table `A' of Companies Act which provides for management of business of the company by Directors. The learned Advocate has also contended that by virtue of the provisions of Order XXXIII, rule 3, C. P. C. a person who is exempted from appearance is the Court can file an application under Order XXXIII, rule 1, C. P. C. And such exemption is not limited to exemption contemplated by sections 132 and 133, C. P. C. He has con--tended that the Code of Civil Procedure is not exhaustive and for that reason if a "person" being a company as in this case is incapable of physical appearance, he cannot be deprived of the benefit of the provisions of Order XXXIII, C. P. C.
4. Mr. K. A. Ghani has adopted the argument advanced by Mr. Mansoor Ahmad Khan and has further contended that the rules being in the nature of subordinate legislation have to be interpreted in a manner that would advance the remedy rather than deprive a person of his rights.
5. There is no direct authority of any superior Court of Pakistan on this point. There is however a fair amount of case-law from the High Courts in pre-Partition India and also some post-Partition cases from Indian High Courts. However, judicial authority is divided on the point. The view of Calcutta High Court, Rangoon High Court and Punjab High Court is to the effect that a company cannot file a suit in forma pauperis whereas the view of Bombay High Court. Allahabad High Court, Patna High Court and even in one case of Madras High Court is to the effect that a company could bring a suit in forma pauperis.
6. Order XXXIII, rule 3, C. P. C. Reads as follows:-- "Notwithatanding anything contained in these rules, the application 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 agent who can answer all material questions relating to the application, and who may be examined in the same manner as the party represented by him might have been examined had such party attended in person."
This rule has of course to be read with the explanation appearing under rule 1 of the same Order.
According to this explanation a person not possessed of sufficient means to enable him to pay court-fee is a pauper. The question is whether the word "person" can be construed to include a legal or juristic person. The word "person" is not defined in the Code, but the same is defined in section 3 (39) of the General Clauses Act. According to that Act, the word "person" includes any company or association or body of individuals whether incorporated or not. The question that then arises in whether the Civil Procedure Code contains any provision limiting this definition of the word person" as contained in General Clauses Act. There is no indication in Order XXXIII of the Code to limit the definition of "person" to living human beings.
Salmond in his book of "Jurisprudence", VIII Edition has observed thus:- "So far as legal theory is concerned, a person is any being whom the law regards as capable of rights or duties. Any being that is so capable is a person, whether a human being or not and no being that is not so capable is a person, even though he be a man. Persons are the substances of which rights and duties are the attributes. It is only in this respect that persons possess juridical significance, and this is the exclusive point of view from which personality receives legal recognition. Persons as so defined are of two kinds, distinguish--able as natural and legal."
Numerous cases and instances could be found where a natural person combines in himself a double personality. A person may act is his individual capacity and also perform statutory functions in pursuance of or compliance with the provisions of soma statutes. It therefore cannot be said that simply because a person who by his very existence has his individual capacity cannot assume a. Juristic personality and perform functions on behalf of a company or an incorporate body. When he performs the functions on behalf of a company he stands in the capacity of a representa--tive of that company and his rights and obligations have necessarily to be construed as in relation to that body whom he represents Under these circumstances there appears to be no reason why the word person as used in Order XXXIII of the Code should not be give an extended meaning.
"I own I have no great doubt myself, for instance, that the word "person" may very well include both a natural person, a human being, and an artificial person, a corporation. I think that in an Act of Parliament, unless there be something to the contrary, probably (but that I should not like to pledge myself to) it ought to be held to include both."
7. I am of the view that not only by virtue of the provisions of General Clauses Act, but even on principles of justice, equity 2nd good conscience, the word "person" should be given an extended meaning so as to include a juristic or artificial person. After all if a human being can be a pauper, so can a corporationor a company.To limit the meaning will operate to deprive the juristic or artificial person of rights that are conferred by law. Law has to be interpreted in a manner as may tend to advance the remedy and curb injustice.
8. I may at this stage consider some cases where contrary view has been taken in regard to interpretation of Order XXXIII of the Code. The first of these cases is the case of S. M. Mitra v.
Corporation of the Royal Exchange Assurance (AIR 1930 Rang. 259). In that case a Receiver bad been appointed under the Insolvency Act. He was not allowed to sue as a pauper because the Receiver himself was possessed of sufficient funds to pay the court-fee, Herald, Ag. C. J., with whom Otter, J., agreed considered earlier cases reported in AIR 1929 Rang. 41 and AIR 1925 Mad. 167 the learned Judges also quoted from the judgment of Lord Blackburn in the case of Pharmaceutical Society, and expressed as follows:- "It seems to me that the provisions of rule 3, O. XXXIII pre--scribing 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 rules 4 and regarding the examination of the applicant and the reference to "wearing apparel" in the explanation to rule 1 tend in the same direction. I would accordingly hold that "person" in O. XXXIII means a natural person, that is a human being, and does not includea juridical person such as a "receiver".
It would appear that the learned Judges did not give an extended meaning to the word person because some functions as are required to be performed under Order XXXIII could be performed only by living human beings and not by a corporate body as such. The reason appears to be that since a company could not present a plaint in person and could not be subjected to examination as to question of pauperism, the provisions of the Order did not apply.This decision has been dissented from in numerous cases, but the provisions of Order XXIX, rule 3 of the Code would be a complete answer as far as the, question of inquiry into pauprism is concerned. Under Order X XIX, rule 3 a Court has the power to require the personal appearance of the Secretary or any Director or any Principal Officer of a Corpora--petition who may be able to answer material questions relating to the suit. It would thus seem that if a company is deprived of the benefit of suing as a pauper merely on the ground that examina--petition as to the question of pauperism was not possible, Order XXIX, rule 3 has provided sufficient cover even an that respect. The learned Judges of the Rangoon High Court did- not consider the case from that angle and in fact it appeals that the provisions of Order XKIK, rule 3, C. P. C. Were not brought to their notice.
9. The next case in which a contrary view h:-as been taken is the case of Bharat Abhyudoy Cotton Mills Ltd. v. Maharaja-- dhiraj Sir Kameswar Singh (A T R 1938 Cal 345). In this case reliance was placed on the earlier Rangoon case of 1930 and also on the observation of Lord Blackburn in 5 A C
857. Costello and Biswa s, JJ., who decided the case took the view that all the provisions of Order XXXIII have to be read together and, therefore, by an inference if a person could not comply with the requirements of any one of these rules in Order XXXIII, C. P. C. The provisions of the said Order did not apply. The learned Judges, expressed that "the scope and meaning of the word `person' depends essentially on the connection and circumstances in which it is used." These words appear to have been taken from the judgment of Blackburn, J. The learned Judges do not appear to have given due weight to the provisions of General Clauses Act and in spite off the said Act proceeded to interpret the word `person" in accordance with the Interpretation Act of England. The dictum of Lord Blackburn is in reference to the English Act, but the Generation Clauses Act definitely gives an extended meaning to the word person. In fact Costello. J., at p. 747 of AIR 1938 Cal. Expressed himself as follows:- "That means no more than this that if there is (I put emphasis on the word `if') any presumption that the word `person' includes a corporation the presumption is no more than of a slight nature and therefore easily displaced One has to con--sider the subject-matter of the particular tnactm3cnt in which the word `person' appears and especially the immediate context in which it is used in order to decide whether than presumption will apply or whether it will not. In the present instance it is to be emphasized that under the terms of the explanation to rule 1 of Order XXXIII that there are two p is of circumstances which may entail pauperism: (1) where a person is unable to pay the fee prescribed by law and (2) where no such fee is prescribed, he is not entitled to property worth Rs. 100 other than his necessary wearing-apparel and subject-matter of the wait."
The learned Judges also adopted reasoning of the Rangoon case that ail the provisions contained in Order XXXIII C. P. C. Must be compiled with before any person, be he a natural person or a juristic person, can be allowed to sue as a pauper.
10. The third case in which contrary view has been taken ogee is a decision of Falshaw, J., in the case of Associated Pictures Ltd. v. The National Studio Ltd. (AIR 1951 Pb. 447). In para. 3 of the said judgment learned Judge by a parity of reasoning similar to Rangoon and Calcutta cases expressed as follows:- "The latter part of the explanation could not be applied to a company by any stretch of imagination and I can hardly believe that any part of explanation could be intended to be inapplicable to any 'person' referred to in the rule. Rule 2 merely prescribes that every application to sue as a pauper shall contain the particulars required in regard to a plaint in a suit and shall be verified in the same manner as a plaint. Rule 3, however, is more relevant to the present question."
11. Analysing the three cases in which a contrary view is taken, it would appear that the main reason for holding that a company cannot sue as a pauper is according to these cases, inability of the company to present the plaint in person and the further inability of subjecting Itself to an inquiry. In none of these cases as is significant, the provisions of Order XXIX, rule 3 have been considered nor has it been consi--dered as to whether the results that follow will amount to urgent discrimination.
Inability to perform some acts personally, can never deprive a person of his rights unless the inability by itself runs counter to the existence of the rights. What I mean to say is that if a person has some rights he cannot be deprived of the same solely because, by his very existence, he is incapacitated from performing some functions. Such a situation arose when a person was given a right of appeal on entering a recognisance. A company had a right of appeal but since it could not enter into a recognisance, it was contended that it could not benefit by the appeal clause contained in that enactment. The position was examined in the case of Corties v. The Kent Water Works Company ((1827) 7 B & C 314-108 E R 741), and Bayley, J., observed:- "But assuming that they cannot enter into a recognizance, yet if they are persons capable of being aggrieved by and appeal--ing against a rate, I should say that that part of the clause which gives the appeal applies to all persons capable of appealing, and that the other part of the clause which requires a recognizance to be entered into applies only to those persons who are capable of entering into a recognizance, but is in. Applicable to those who are not."
It would thus seem that a mere incapacity arising out of the very fundamental nature of things will not defeat the rights of a person if the rights do exist. The question in the present context is whether a company which in the very nature of things is incapacitated from presenting a plaint in person or subjecting itself to an inquiry into pauperi3m can be denied rights which otherwise devolves on the company. In that context the provisions of Order XXIX, rule 3, C. P. C. Also cannot be over-- looked because it is open to a Court to summon a Director and question him in regard to pauperism of the company, Moreover, a Director who under the provisions of the Com--panies Act has the power to act on behalf of the company is a person who can perform the obligations imposed in Order XXXIII, C. P. C.
12. At this stage I may also consider some pre-Partition and post---Partition cases from other High Courts of India. The first case is of Perumal Kaundon (AIR 1919 Mad. 362). In this case B Bakewell and Sastri, JJ., held that the word "parson" In Order XXXIII, C. P. C. Has the same meaning as in the General Clauses Act unless there is something repugnant in the subject or context, and "person" will include a company. The learned Judges dealing with the functions of the Official Liquidator held that in compliance with the provisions of Order XXXIII, rule 3, the liquidator could fulfil all the obligations of a pauper petitioner required under the Order and the liquidator could also appear for the company and present the petition in person. The learned Advocate for the appellant however attempted to distinguish this case. The argument was that while the Liquidator could file a suit in forma pauperis, a Director could not do so. I have not been able to understand the import of this contention. The pro--visions of Order XXXIII are designed to confer rights on a person who is a pauper regardless of the fact as to who may be prosecu--ting the remedy. The applicability of the provision is contin--gent on the financial status of the person for whose benefit a cause is brought and not on the status of the person actually bringing the cause or prosecuting the same. The case in point would be a suit on behalf of a minor as contemplated by Order XXXII, C. P. C. This Order provides that a suit by a miner has to be instituted in the name of a next friend. Minor generally possess no property, therefore, the suit under those circumstances will have to be filed in forma pauperis. But if a next friend is a man of means would it be just to deprive the minor of his remedy.
Several other instances of like nature could be enumerated. I am of the view that question of pauperism has to be decided in reference to the person for whose benefit the cause Is brought regardless of the hand that signs the plaint or prosecutes the remedy on behalf of the pauper. For these reasons it will make no difference if the suit is brought by a liquidator or a Director.
13. A Full Bench of Allahabad High Court in the case of Kundan Sugar Mills, Amroha v. Indian Sugar Syndicate Ltd. And others (AIR 1959 All. 540) also considered the question. The learned Judges dissented from the reasoning in the three cases where a contrary view had been taken. These three cases are AIR 1938 Cal. 745, AIR 1930 Rang. 359 end AIR 1951 Pun. 447. The Full Bench clearly held that a Limited Company could take advantage of the provisions of Order XXXIII of the Code.
The learned Judges also considered the rules of interpretation and observed as follows:- "The rule of interpretation which was employed was that though every word occurring in a statute should be given its proper meaning and weight it could not be overlooked that the meaning was derived from the context or the subject. This rule, it is pointed out, had been employed in the case of I L R 41 Mad. 624 1 (AIR 1918 Mad. 362), where a company had been held entitled to the benefits of Order XXXIII, rule 1 of the Code of Civil Procedure even though it could not be a person who could possess wearing-apparel. The line of reasoning suggested on behalf of the respondent in the present case was thus approved by their Lordships of the Supreme Court. It follows by Implication that the narrow interpretation of Order XXXIII, rule 1, C. P. C. Put forward on behalf of the appellant In Its preliminary objection must be rejected as un--acceptable. A limited company can therefore take advantage of the provisions of Order XXXIII if it otherwise fulfils the necessary requirements.
The preliminary objection raised by the appellant must therefore be overruled."
14. A Full Bench of Madras High Court in the case of Swami Nathan v. Official Receiver (AIR 1937 Mad. 549), considered the case-law on the subject and observed as follows:--- "The test is not whether a person is a legal owner but whether as legal owner he is a pauper or not.
If principle of law is that a natural person in his own right is a different person when he is representing the estate of another, the test is whether in that respective character and as owner of that estate he is a pauper within the meaning of Explanation to Order XXXIII, rule 1, C P. C."
15. In fact after the decision of the Supreme Court of India in 1958, the Patna High Court, Kerala High Court, Hyderabad High Court have not followed the three cases wherein contrary view has been held. These cases are reported in AIR 1961, Pat. 15, AIR 1961 Ker. 180 and AIR 1951 Hyd.
124. The law, therefore, in India stands settled.
16. I have also considered the question in its full magnitude and in all aspects, and I am clearly of the view that a company can sue as a pauper. The mere fact that a Director files a suit will make no difference. The provision of Order XXXIII, rule 3 and other rules requiring the holding of inquiry, so that the Exchequer is not defeated, can be complied with by having a recourse to the provisions of Order XXIX, rule 3, C. P. C., which gives a Court power to call any Director of a company, for the purpose of questioning him in relation to the suit. Such question can also be in relation to pauperism of the company.
17. The Explanation to rule 1 will only govern the particular rule. In fact this Explanation only defines pauperism, whereas the remaining rules in Order XXXIII, C. P. C. Are mainly pro--cedural. If a person is pauper his mere inability to comply with the provisions of other rules will not deprive him of his rights, more so, when the inability attaches on account of the very nature and existence of the person, rules of the Code of Civil Procedure which are by their very nature legislation of a subordinate character have to be interpreted in a manner as would advance the purposes of the controlling provisions which devise a remedy. So long as the rules are employed to advance the controlling provisions, a rigid interpretation could not be placed on the same as to defeat the very purpose of the controlling provision. Order XXXIII is designed to provide a remedy in cases where a person on account of his financial disability may be deprived of his rights and that being the paramount consideration the rules of Procedure have to be read In aid of the controlling provisions.
18. Moreover, denying the rights of company to file a suit in forma pauperis will amount to discrimination on an unreason--able hypothesis. Even otherwise the rules of justice, equity am good conscience favour advancing of remedy. There appears to be no reason why a single person could file suit to for pauperis but a body of persons cannot file the suit in the same manner.
19. In the result, this appeal is dismissed. Since the appeal has Involved determination of a point of law and there were no Pakistan reported decisions on the point, I would leave the parties to bear their own costs.
20. The matter will now go back to the Registrar (O. S.) for further proceedings.
DORAB PATEL, J.----I agree. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.