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TMI Blog1954 (1) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... es in any area now forming part of West Pakistan, has, after the 1st day of March, 1947, left, or been displaced from, his place of residence in such area and who has been subsequently residing in India, and Includes any person who is resident in any place now forming part of India and who for that reason is unable or has been rendered unable to manage, supervise or control any immovable property belonging to him in West Pakistan, but does not include a banking company; Now, what is urged is that this definition by its very nature can only apply to an individual and the Legislature has emphasised the aspect of residence and no other aspect. It would be impossible, it is urged, to suggest that a firm can reside in the sense in which that word is used in this definition. The residence contemplated is a human residence and it cannot apply to an entity like a firm but it can only apply to individuals. In my opinion it is clear that there is no such legal entity as a firm. A firm is merely a compendious way of describing certain number of persons who carry on business as partners in a particular name, but in law and in the eye of the law the firm really I consists of the individual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... splaced person as given in the Act, I see no reason why they cannot maintain an application merely because that application is in the name of the firm and not in the individual names of the partners. Whether the partners can maintain an application in the name of the firm or not is more a question of procedure than a question of substantive right. It may be said, as it has been said and as I shall presently point out, that the partners who are all displao ed persons, although they have a right to make an application under the Act, cannot make that application in a particular form, viz, in the name of the firm. But that would raise a question of procedure. The right of the partners to maintain the application cannot be disputed or challenged 5. Turning to the procedural question, what is urged is that o. 30, r. 1, does not apply to the proceedings under the Displaced Persons Act. It is clear that if Order 30, r. 1, did not apply, then the application would not be maintainable in the form in which it has been presented. It is only by reason of Order 30 that a particular facility is given to persons who carry on business in a firm name. Apart from Order 30, every partner would hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e had expressly to provide by Section 25 that the Civil P. C. applies to proceedings before the tribunal. Therefore, in effect by reason of Section 25, Section 141 of the Code has been made applicable not only to proceedings in any Court, but also to proceedings before the tribunal, and therefore just as Order 30 would apply to an independent proceeding in a civil Court, 6. 30 would also apply to a proceeding before the tribunal. Therefore, in my opinion there is no substance in the contention that the application made by the respondent firm is not maintainable as Order 30 does not apply to proceedings before the tribunal. 6. The next contention is of greater substance and that contention is that an application to re cover damages is not an application in respect of a debt as defined by the Act and therefore it was not open to the respondent firm to make an application to recover damages for breach of contract under the Act and the only forum open-to the respondent firm was a civil Court and not the tribunal set up under the Displaced Persons Act. Now, debt has been defined in Section 2(6) as any pecuniary liability, whether payable presently or in future, or under a decree or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cuniary liability upon the person against whom the claim is made, and the question is whether in law a person who commits a breach of contract becomes pecuniarily liable to the other, party to the contract. In my opinion it would not be true to say that a person who commits a breach of the contract incurs any pecuniary liability, nor would it be true to say that the other party to the contract who complains of the breachs has any amount due to him from the other party. As already stated, the only right which he has is the right to go to a Court of law and recover damages. Now, damages are the compensation which a Court of law gives to a party for the injury which he has sustained. But, and this is most important to note, he does not get damage or compensation by reason of any existing obligation on the part of the person who has com mitted the breach. He gets compensation as a result of the fiat of the Court. Therefore, no pecuniary liablility arises till the Court has determined that the party complaining of the breach is entitled to damages. Therefore, when damages are assessed, it would not be true to say that what the Court is doing is ascertaining a pecuniary liability whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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