A partnership firm cannot claim to be an indigent person under Order 33 of the Code of Civil Procedure, 1908, as it is not a legal entity but an association of persons.

Thomas, J.

A partnership firm sought for leave to sue as an indigent person for realisation of more than rupees four lakhs. The court fee payable would come to about rupees thirty thousand. It was on the premise that the firm has no assets of its own at present that the plaintiff has filed the application for leave to sue as an indigent person. But the application was dismissed by the lower court mainly on the ground that the partners of the firm have failed to show that they are not possessed of sufficient means to pay the court fees. However, time was granted to the applicant to pay the court fees for getting the suit registered as a regular suit. It is the said order which the firm has challenged before us.

2. According to the appellant, the firm consists of two partners only. The Managing Partner of the firm was examined as P.W.1 and he deposed that he has no means to pay the required court fee. The other partner was not examined, nor was it shown that the other partner has no means to pay the court fee.

3. Order 33 R.1 of the Code of Civil Procedure, 1908 (for short 'the Code') provides for institution of a suit by an indigent person. Explanation 1 to R.1 defines indigent person. As per the definition, "a person is an indigent person if he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit". R.1A says that an inquiry shall be made into the question whether or not aperson is an indigent person. R.2 stipulates that every application for permission to sue as an indigent person shall contain the particulars required. R.3 enjoins that the application shall be presented by the applicant in person and R.4 obliges the court to examine the applicant, regarding the merits of the claim and the property of the applicant.

4. In all the above cases the suit can be instituted by an indigent person. There is no other provision by which a suit can be filed without remittance of the court fee payable.

5. Order 33 permits only "a person" to file the suit in forma pauperis. No doubt, a human being as well as a juristic person would fall within the ambit of "person" envisaged in 0.33. But the question is whether a firm is such "a person". Under S.4 of the Indian Partnership Act, 1932 "persons who have entered into partnership with one another are called individually partners and collectively a firm". Partnership is "the relation between the persons who have agreed to share the profit of a business carried on by all or any of them acting for all". Partnership Act does not cloth a firm with the mantle of a juristic person. A firm thus remains a collection or association of persons.

6. Legal position in English Law was also that a firm is not a legal entity. Farewell L.J., in Sadler v. Whiteman (1910-1 K.B. 868) has stated that "in English law a firm as such has no legal existence; partners carry on business both as principals and as agents for each other within the scope of the partnership business; the firm name is a mere expression, not a legal entity, although for convenience.... it may be used for the sake of suing and being sued". In India there was some conflict of opinions on this point earlier. However, the conflict was set at rest by the Supreme Court (vide Bacha Guzdar v. Commr. of I.T.- A.I.R 1955 SC 74). The position now stands well settled that a firm is not a legal entity but is only an association of persons (vide Purushottam & Co. v. Manilal & Sons - A.I.R 1961 SC 325 also).

7. What 0.30 R.1 of the Code enables is that partners in a firm can sue in the name of the firm. They can also be sued against in the name of the firm. None of the provisions in Order 30 would equip a firm to be a legal entity, but a litigative convenience is provided to the partners of the firm for instituting the action in a civil court. So when a firm figures as the plaintiff in a suit,