1977 Supreme(AP) 44

Andhra Pradesh High Court
Judges : LAKSHMAIAH
Ennala Balaram and Son - Appellant
Versus
State Bank of India, Secunderabad represented by its Agent, rashtrapathi Road, Secunderabad - Respondent
Decided On : 02-15-77

A partnership firm is a "person" within the meaning of Order 33 of the Code of Civil Procedure and as such is entitled to sue as a pauper. For the purpose of ascertaining whether or not a person, in order to answer the description of pauper under Order 33 possesses sufficient means to enable him to pay the prescribed fee, the properties owned and possessed by the partners, constituting that fir IP which is a person , shall have to be necessarily taken into account for such an ascertainment because the firm is to be construed as an association of individuals and, in the context of Order 30 read with Order 33 of the Code of Civil Procedure, all the partners shall have to be construed as if they are different plaintiffs and if that status of a plaintiff has to be conferred upon every partner of a firm which chooses to sue as pauper, their properties also should necessarily be taken into account for the purpose of ascertaining the sufficiency of means under Order 33, Rule 1, Explanation (i) (a) of the Code of Civil Procedures

Headnote:

PAUPER SUIT - PARTNERSHIP FIRM - WHETHER CAN SUE AS PAUPER - PROPERTIES OF PARTNERS - WHETHER CAN BE TAKEN INTO ACCOUNT FOR ASCERTAINING SUFFICIENCY OF MEANS - ORDER 33, RULE 1, EXPLANATION (I) (A), C. P. C. - ORDER 30, RULES 1 (1), 2 (1) AND (3), 6, C. P. C. - GENERAL CLAUSES ACT, 1897, SEC. 3 (42).

Fact of the Case:

A registered partnership firm, Ennala Balaram and Sons, Agricultural and Dairy farm, represented by its Managing Partner, Ennala Ram mohandas, filed a petition before the Court below under Order 33 of the code of Civil Procedure, seeking permission to sue informa pauperies, stating that the firm at such owned more than 700 acres of land and that it was mortgaged to the State Bank of India, who is the respondent herein, and that the petitioner firm is not able to realise any profits from the land as it was put to heavy loss owing to the failure of the respondent-Bank to release the entire amount which is promissed in time, that all the she-buffaloes, which were purchased by the firm to run the dairy, died, exectping four, the value of which was only Rs. 500/- that all the other properties owned by the partners individually are heavily encumbered and the petitioner has no means to pay the required court-fee of Rs. 12,143; -. That petition was resisted by the respondent -Bank as well at the government, to whom the notice of the petition was given.

Finding of the Court:

1. A partnership firm is a "person" within the meaning of Order 33 of the Code of Civil Procedure and as such is entitled to sue as a pauper. 2. For the purpose of ascertaining whether or not a person, in order to answer the description of pauper under Order 33 possesses sufficient means to enable him to pay the prescribed fee, the properties owned and possessed by the partners, constituting that fir IP which is a person , shall have to be necessarily taken into account for such an ascertainment because the firm is to be construed as an association of individuals and, in the context of Order 30 read with Order 33 of the Code of Civil Procedure, all the partners shall have to be construed as if they are different plaintiffs and if that status of a plaintiff has to be conferred upon every partner of a firm which chooses to sue as pauper, their properties also should necessarily be taken into account for the purpose of ascertaining the sufficiency of means under Order 33, Rule 1, Explanation (i) (a) of the Code of Civil Procedures

Issues: 1. Whether a partnership firm can sue as a pauper? 2. If so, whether the properties belonging to the partners of that firm can be taken into account for the purpose of ascertaining whether the firm possesses sufficient means to enable it to pay the fee prescribed by law?

Ratio Decidendi: 1. The expression "person" is nowhere defined in the Code of civil Procedure. But, that expression has beeri defined in the General clauses Act. 1897, through Sec. 3, sub-sec. (42) which reads thus; "3,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- xx XX XX XX XX XX (42) "person" shall include any company or association or body of individuals, whether incorporated of not." this definition of "person" in the Act, can be invoked only when there is nothing repugnant in the subject or context in the Act. Therefore, on a combined and conjoint reading of Order 33 Rule (1) Explanation (i), order 30 of the Coda of Civil Procedure, and the definition of "person in Section 3 (42) of the General Clauses Act, 1897, what is apparent is that a firm can sue and be sued. "association of body of individuals whether incorporated or not" can be brought into the category of "person" as defined under the General Clauses Act and therefore having regard to the definition of "firm", as adverted to already, occuring in Sec. 4 of the Partnership act, I do not find any difficulty in construing the expression "person" , as occurring in Order 33 to mean also as a firm which is nothing but an association or a body of individuals whether incorporated or not. After perusing the relevant provisions of the Code, particularly those contained in Order 30 of the Code of Civil Procedure, I am satisfied that there is nothing repugnant in the Code of Civil Procedure or in the subject or the context for negativing the application of the definition of "person" in Sec 3 (42) of the General Clauses Act to the facts of the case. 2. It is well-settled that a firm as such is not an entity in law and is not a "person" within the meaning of Sec. 4 of the Partnership act. Its name is therefore a mere abbreviated name of all the partners, Dulichand Lakshrmnarayana vs. Commissioner of income-Tax Nagpur, AIR 1956 S. C. 354, It is for this reason that special provisions have been made in Order 30 C. P C. , regarding suits by or against firms and persons carrying on business in names other than their own. So, it is beyond doubt that even if a suit is brought in the name of a firm, it is really a suit by all its partners under the firm name.

Final Decision: Revision petition is dismissed but, in the circumstances without costs.