Falshaw, J. - (1.) A company known as the National Studios Limited (in voluntary liquidation) quoted a petition through its voluntary liquidation, Mr. Ram Partap Garg, in the Court." of Commercial Subordinate Judge at Delhi under Order XXXIII, Rule 1, Code of Civil Procedure for permission to bring a suit in 'forma pauperis for the recovery of Rs. 21.000/ - against represent Petitioner, a company known as associated Pictures Limited of Calcutta. Apart ,the question whether, the applicant, company has sufficient means to pay the requisite court -fee, the, question also arose whether a company could be regarded as a 'person' within the meaning of Order XXXIII, Rule 1, Code of Civil Procedure. It does not appear that has been any decision on this point by the Court of Lahore or by this Court by the learned Subordinate Judge could con(SIC) himself bound, and there are decisions of (SIC) High Courts in support of either side. (SIC) the judgment it seems that two decision favour of the view that a company is (SIC) not a "person" within the meaning of Order XXXIII, Rule 1, Code of Civil Procedure, were cited, whereas four decisions were cited to the contrary, in the circumstances the learned Subordinate Judge followed the view of what he considered to be the majority and held, it having been proved that the company in liquidation had not sufficient assets to pay the requisite court -fee, that the 'company was entitled to bring the suit in 'forma pauperis'. The Defendant company has come in revision against this order.
(2.) THERE is no doubt that in Clause (39) of Section 3 of the General Clauses Act of 1897 it is provided that, the word "person" shall include any company or association or body of individuals, whether incorporated or not, but at the same time it is clear that this meaning is not intended to be of universal application wherever the word "person" appears in a statue, since the opening words of Section 3 read: In this Act, and in all Central Acts and Regulations made after the commencement of this Act, unless there is anything repugnant in the subject or context. From this it is clear that where the word "person" appears in a statute, some regard must be had to the nature of the subject dealt with and to the context in deciding whether the word has the wider meaning mentioned in Clause (39) or is restricted to its ordinary sense of an individual person. On a bare perusal of the relevant provisions of Order XXXIII of the Code of Civil Procedure, I do not think there is any doubt that the word "person" is used in this Order, in the sense of an individual person. Rule 1 reads: I. 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 plaint 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. 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 as it reads: 3. Notwithstanding 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 authorized 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. It is difficult to interpret the word "person" as used in Rule 3 other than its ordinary sense of an individual, and this interpretation is confirmed by the words of Rule 4 which read:
(3.) (1) Where the application is in proper form and duly presented, the Court may, if it thinks fit, examine the applicant, or his agent when the applicant is allowed to appear by agent regarding the merits of the claim and the property of the applicant; (2) Where the application is presented by an 'agent, the Court may, if it thinks fit, order that the applicant be examined by a commission in the manner in which the examination of an absent witness may be taken. 4. There is, however, no doubt that this, to my mind, obvious interpretation of the meaning of the word "person" in this order has not been accepted by a number of learned Judges of various High Courts. In Perumal Koundan v. Venkatasami : AIR 1918 Mad 362Bake well and Kumarswami Sastri JJ. held that the word "person" in Order XXXIII has the same meaning as in the General Clauses Act, and that the Explanation to Rule 1 simply allows deduction of the value of wearing -apparel where the applicant has such apparel rand cannot be construed to mean that only persons who, in law, can possess wearing -apparel, can sue as paupers. The ruling in Sivagami Ammal v. Gopala Swami Odayar : AIR 1925 Mad 765 is not so much in point, as the facts were that after a suit had been instituted in 'forma pauperis' the Plaintiff who had been allowed to sue as a pauper died, and the question was whether his' executor was liable to be dispaupered because personally he was not a pauper, and it was held that he was not liable to be dispaupered and made to pay the court -fee. In Mabia Khatun v. Satkari : AIR 1927 Cal 309, it was held that when a Plaintiff sues in a representative character, such as a 'mutwalli', trustee, or a 'shebait', unless it is shown that the Plaintiff has in his possession property belonging to the 'wakf estate or trust or the idol for whom he sues, sufficient to enable him to pay the requisite court -fee prescribed by law, he may be allowed to sue as a pauper even if it is shown that he has sufficient personal property of his own. It was also observed that the capacity of a person suing in a representative character must be kept distinct from his personal capacity, and this was really the main question decided, the question whether the idol or trust on behalf of which the suit was being brought was a "person" or not within the meaning of Order XXXIII not being discussed at all. In Sripal Singh v. U.P. Cinetone Ltd.', : AIR 1944 Oudh 248 Thomas C.J. and Misra J. held that a limited Company was a person within the meaning of Order XXXIII, Rule 1, and that the word "person" in this Order means a juristic person. Similarly in 'D.K. Cassim and Sons Rahman, AIR 1930 Rang 272 Brown JJ. held that a firm can be to be a "person." under Order XX. 1. The authoritativeness of this dec(SIC) ever, appears to me to be rather under the fact that in 'S.M. Mitra v. Cor(SIC) Royal Exchange Assurance', the sar(SIC) only a few pages away at page 259 decision by Held A, C. J. and Otte(SIC) contrary, these learned Judges coming elusion after full discussion of the ri(SIC) the word "person" in Order XXXIII natural person, that is a human being not include a juridical person such receiver under the Insolvency Act. Then carefully considered decision of the High Court reported as Bharat Cotton Mills Ltd., v. Kameshwar Sing, 1938 Cal(25) 745 in which Costello a JJ. after considering in separate judgment provisions of Order XXXIII and precisions on the point, held that the word in Order XXXIII, Rule 1 and also XLIV, Rule 1 does not include a limited incorporated under the Companies such a company can neither sue pauperis nor prefer an appeal tin XLIV, Rule 1 in 'forma pauperis'. With respect to the learned Judges who deli decisions cited above on behalf of the (SIC)dent to the contrary. I do not think is any doubt that the view taken in to of the Rangoon decisions and in the decision was correct. The wording of(SIC) of the General Clauses Act clearly that the definitions and explanations word the rest of the section are not universal cable, and that in spite of these definition explanations the meaning of the word be construed in the light of the subject statute and the context in which the used, and to my mind the provisions XXXIII leave no doubt that the word in this part of the Code of Civil Procedure only an individual person.;