ORDER :- I think the court below was in error in making an enquiry into the questions whether Balramdas through whom the deity as plaintiff sought permission to sue in forma-pauperis was competent to represent the deity and whether the deity could maintain a suit against the Mahant. Such questions, in my opinion, cannot be enquired into under Order 33 of the C.P. Code. It was the duty of the learned Judge of the court below first to consider if the application of the deity for permission to sue in forma-pauperis could be rejected on any of the grounds mentioned in R.5 of O.33, C.P. Code and if not then to make an enquiry whether the deity was possessed of sufficient means so as to pay the court-fees.

2. The deity through Balramdas came before the court with the allegation, inter-alia, that Mahant Prem Das had been mismanaging the endowed properties and had illegally alienated them to strangers. Mahant Prem Das and the transferees were impleaded as defendants.

3. Mahant Prem Das filed an objection against the application of the deity. Inter-alia, it was alleged that the deity under the law could not be declared as pauper as it was not a natural person and that it could not sue the Mahant and the transferees through Balramdas who, in law, could not act the next friend. It was also alleged that the deity was possessed of sufficient property to enable it to pay court-fees. The learned Civil Judge allowed the objections and dismissed the application of the deity for permission to sue in forma-pauperis without granting any time to the deity to pay the court-fees.

4. The plaintiff in the proposed suit was the deity and not Balramdas On a reading of the plaint in the proposed suit it cannot be said that it does not disclose a cause of action in favour of the plaintiff deity for the reliefs claimed in the suit. The learned Civil Judge, to my mind, unnecessarily entered into the controversy whether Balramdas was competent to be next friend of the deity, while considering the application under Order 33 of the C.P. Code. This would be a question which very properly could be agitated as defence to the suit after it was registered. An enquiry into such a question is not contemplated under O.33 of the C.P. Code.

5. In coming to the conclusion that the deity being a juristic person and not a natural person, was not competent to sue as a pauper under Order 33 of the C.P.C. the learned Judge of the Court below relied upon a decision of the Judicial Commissioner of Manipur in the case of Radha Krishna Devata v. Nathamal Mohta, AIR 1963 Manipur 40. The learned Judicial Commissioner, as appears from the reported judgment, relied on a decision of the Punjab High Court in the case of Associated Pictures Ltd. v. National Studios Ltd., AIR 1951 Punj 447. The Punjab High Court in that case has taken the view that under Order 33 only a natural person is contemplated by the Explanation to Rule 1 and a company incorporated under the Companies Act not being a natural person would not be covered by the said Explanation. A Full Bench of our High Court in the case of Kundan Sugar Mills Amroha v. Indian Sugar Syndicate Ltd., AIR 1959 All 540 (FB) has taken the contrary view. It has held that a limited company can take advantage of the provisions of Order 33 if it otherwise fulfils the necessary requirements. It is clear that the law as laid down by our High Court permits a juristic person also to take the benefit of Order 33 of C.P. Code.

6. The question then that arises is why a deity who is juristic person and can sue or be sued through its Pujari. Shebait or any other person interested, cannot sue as a pauper? To my mind when an incorporated limited company has been held by this Court capable of sueing as a pauper, a fortiori it follows that a deity can also sue as a pauper. The learned Judge of the court below was in error in explaining away the Full Bench decision of this Court in the case of AIR 1959 All 540 (FB) (supra) on the observation that it related to

Click Here to Read the rest of this document