A deity is a juristic person and can sue as an indigent person under Order 33, Rule 1, CPC. However, a suit instituted by the next friend without obtaining the leave of the court to institute the action is incompetent.

( 1 ) THIS is a revision application at the instance of some of the defendants in a proceeding arising out of an application for leave to sue as indigent person being Judicial Misc. Case No. 31/77 of the 1st Court of the Additional Subordinate Judge at Midnapore. The leave prayed for was granted by the impugned order dated July 5, 1980.

( 2 ) THE applicant for the leave was Sri Braja Raj Jew Thakur represented by the next friend Smt. Mokshoda Adhikari. It is stated in the application that the landed property described in the plaint schedule were the subject-matter of an Arpannama executed by late Jagannath Adhikary on August 18, 1975. In terms of the Arpannama Haripada Adhikary son of Jagannath Adhikary is the shcbait of the deity. The properties in ka and kha schedules are debultar properties and not subject to alienation. It is alleged in the plaint accompanying the application for leave to sue as an indigent person that Haripada who figures as defendant No. 13 in the suit has been mismanaging the debuttar estate and has alienated the properties by different documents in favour of defendants I to 12. misappropriating the consideration acquired by such alienations. It is further alleged that Haripada has thereby dispossessed the deity from the properties. Mokshoda Adhikary figuring as the next friend of the deity happens to be the wife of Haripada. It is alleged that she having protested against such conduct of her husband, she was driven out of the house. It is prayed in the plaint that the transfers effected by defendant No. 13 in favour of defendants 1 to 12 be declared fraudulent, collusive and inoperative and not binding on the deity. There is also a prayer for recovery of possession. In the application for leave it is stated that besides the properties described in Sch. Ga which comprises the temple, the deity possesses only some movables worth Rs. 16/ -. As such it was prayed that leave may be granted to sue as an indigent person.

( 3 ) THE application was opposed before the learned Subordinate Judge. He found that the requisite conditions of Order 33 have been fulfilled and as such the applicant was entitled to the leave prayed for. The contention that the suit was mala fide, and does not reveal any cause of action and that too at the instance of the wife of the pre sent shebait were not gone into because the learned Subordinate Judge felt that these matter are not relevant for consideration in an application under Order 33, Rule 5 of the Code of Civil Procedure and that they should be left open for consideration at the trial stage. Being aggrieved, some of the defendants have preferred the present application.

( 4 ) THE application has been heard on contest upon notice to the opposite parties.

( 5 ) MR. S. P. Roy Chowdhury appearing in support of the petitioners urged two points while challenging the order impugned. Firstly it was contended that the deity is not a 'person' within the meaning of Order 33 of the Code. The next point urged was that the suit could be brought by the shebait himself or a prospective shebait or by a next friend appointed by the Court to represent the deity. Since Mokshoda was not so appointed, it was contended that the proposed plaint is misconceived and not maintainable and leave should not in the circumstances have been granted to the prejudice of the deity.

( 6 ) IN support of the first contention that the deity is not a 'person' reliance was placed on a decision in the case of Bharat Abhyudoy Cotton Mills v. Kameswar Singh, AIR 1938 Cal 745. In this case the leave was prayed for by a company. It was held that the word 'person' does not include a limited company and it is not possible for and competent to such a company to sue as a pauper or to prefer an appeal as a pauper under Order 44, Rule 1 of the Code. It was held that an isolated reference to the word 'person may include a company or an artificial person as denned in Clause (39) (or 42?) of Section 3 of