(1.) THIS second appeal is by the plaintiff against the dismissal of his suit by the Courts below.

(2.) THE plaintiff-appellant M/s Bachomal Sadoromal was a registered partnership firm carrying on its business of money lending at Raipur having two partners, Bachomal s/o Sadoromal and Smt. Rekha Devi w/o Ramesh Kumar. On 28-10-1971, the plaintiff-firm lent a sum of Rs. 5,000 to the defendant-respondent on his executing a Hundi in favour of the firm. As the money was not paid even many days after maturity, the plaintiff filed a suit for the recovery of the amount together with interest.

(3.) THE Courts below found that Bachomal at the time of entering into the contract of partnership was a citizen of India. He acquired the citizenship of India on 30-7-1971. Bachomal son of Sadoromal came into India on or about 28-8-1970. The partnership was formed on 19-11-1970 and they applied for registration of the firm on 21-5-1971. The firm was registered as partnership firm on 3-6-1971. Both the Courts held that since on 3-6-1971 when the contract of partnership was entered into, the plaintiff was not a citizen of India, he could not validly form a partnership which could carry on baseness in India. The partnership being illegal according to the Courts below, they could not enforce the recovery of the sum advanced by a suit and, therefore, dismissed the claim of the plaintiff on the preliminary ground.

(4.) THE agreement to share profits of a business by Bachomal would fee exceptionable if the object of the agreement was forbidden by law or was of such a nature that if permitted it would defeat the provisions of any law or that the Court regards it as opposed to public policy. Section 4 of the Partnership act does not prohibit the formation of a partnership with a person who is not a citizen of India. No provision of law has been shown which indicated that a person who is not a citizen of India would not enter into a partnership with the indian citizen. In England the law on the point has been stated in Halsburys laws of England, Vol. 28, at page 497, paragraph 955 thus;

"955. Aliens. Among aliens a distinction must be drawn between those who are enemies and those who are not. Apart from any Question of conflict of laws, such as the civil rights and liabilities of a duly accredited member of some foreign embassy, an alien who is not an enemy can enter into and carry out a contract of partnership in England with another such such alien or with a British national. "

A distinction has been drawn between an alien belonging to an enemy country and one belonging to a friendly country. Under section 83 of the Code of Civil procedure, an alien enemy residing in India could with the permission of the central Government sue in any Court. An alien from a friendly country could always sue in any Court otherwise competent to try the suit as if he were a citizen of India. Explanation underneath that section showed as to who was an alien enemy. The pleadings are completely silent as to whether Bachomal sadoromal belonged to an enemy country. Bachomal, therefore, could not be disqualied from becoming a partner on that account.

(5.) IT was suggested that such a partnership would be illegal as it was opposed to public policy and the argument was based on provisions of the citizenship Act. It was urged that by virtue of clause (5) of section 5 of the citizenship Act, 1955, a foreigner was prohibited from doing business under an assumed name. He was further prohibited, on entering into India, to assume or use or purport to assume or use for any purpose any other than that by which he was ordinarily known immediately before his entering into india. It was then argued that partnership was nothing but carrying on business under an assumed name He was thus doing indirectly a thing which he was prohibited under the express provision of law to do. To appreciate this argument, I quote below section 5 of the Foreigners Act, 1946 :-

"5 (1) No foreigner who was in India on the date on which this Act came into force shall while in India after that date assume or use or purport to assume or use for any purpose any name other than that by which he was ordinarily known immediately before the said date. (2) Where, after the date on which this Act came into force, any foreigner carries on or purports to carry on (whether alone or in association with any other person) any trade or business under any name or style, other than that under which that trade or business was being carried on immediately before the said date, he shall, for the purpose of sub-section (1), be deemed to be using a name other than that by which he was ordinarily known immediately before the said date. (3) In relation to any any foreigner who, not having been in India on the date on which this Act came into ferae, thereafter enters India, sub-sections (1) and (2) shall have effect as if for any reference in those sub-sections to the date on which tins Act came into force there were substituted a reference to the date on which he first enters India thereafter (4) For the purpose of this section- (a) the expression "name" includes a surname, and (b) a name shall be deemed to be changed if the spelling thereof is altered. (5) Nothing in this section shall apply to the assumption or use- (a) of any name in pursuance of a licence or permission granted by the Central Government; or (b) by any married woman, of her husbands name. "

(6.) IT would be seen that what was prohibited was that a foreigner entering into India does not change his name or assume a different name without the permission of the Central Government. Bachomal Sadoromal at no time assumed a different name than by which he was known before he entered the territories of India. As a partner he declared his name by which he was known. Under section 4 the partnership would be collectively known by a name called the "firm name". Instead of calling the association by individual names of the partners, the partnership had to be called by a firm name and this was permissible under section 4 of the Act. The partnership here was a different entity and it would not be said that Bachomal assumed a name different than by which he was called when he entered into India. It was not the same thing as trading in an assumed name. I do not see any force in the argument that such an agreement was opposed to section 5 of the Foreigners Act and was thus against the public policy.

(7.) THE learned Additional District Judge had made a reference to Article 19 of the Constitution and appears to be of the view that Article 19 conferred rights on a citizen of India to carry on business and since Bachomal was not a citizen he could not carry on the business nor hold any property in India. This argument had been canvassed before me by the learned counsel for the respondent, and, therefore, it is necessary to dispose of this point. Fundamental rights under Chapter 3 of the Constitution are a guarantee against the State action. It guarantees to the citizen violation of his right by a Governmental action as distinguished from violation of any such right by a private individual to whom the ordinary legal remedies may be available. It was observed by the supreme Court in P. D. Shamdasani v. Central Bank of India (AIR 1952 SC 59 [LQ/SC/1951/80] .) as under:-

"neither Article 19 (1) (f) nor Article 31 (1) on its true construction was intended to prevent wrongful individual acts or to provide protection against merely private conduct. Article 19 deals with the "right to freedom" and by clause (1) assures to the citizen certain fundamental freedoms including the freedom to acquire, hold and dispose of property" subject to the power of the State to impose restriction on the exercise of such rights to the extent and on the grounds mentioned in clauses (2) to (8). The language and structure of article 19 and its setting in Part III of the Constitution clearly show that the article was intended to protect those freedoms against State action other than in the legititate exercise of its power to regulate private rights in the public interest. Violation of rights of property by individuals is not within the purview of the articles. "

(8.) THE distinction between a fundamental right, and an ordinary legal right has been analysed by Basu in his Commentary an Constitution of India, vol. 1, Sixth edition, at p. 257, The learned author quoted an American Supreme court case decision to explain the distinction, the relevant portion of which is as under:-

"these rights (i. e. , those guaranteed by a Bill of Rights) are different from concrete rights which a man have to a specific chattel or to a piece of land or to the performance by another of a particular contract, or to damages for a particular wrong, all of which may be invaded by individuals; they are the capacity, power or privilege of having and enjoying those con-crate rights and of maintaining them in the Courts, which capacity, power of privilege can only be invaded by the State. "

A fundamental right is one available only against the State and not for violation of any such right by a private individual except where the State supports such private action. There is thus nothing in Article 19 on which the respondent could fall back for saying that it negatives the rights of a person who is not a citizen of India in so far as ordinary legal rights were concerned and which were enforceable against private individuals. There was nothing in the article which prevented an alien to enforce his right which could be claimed under the ordinary law of the land.

(9.) LASTLY, it was contended that under Article 2 of International Bill of human Rights, the countries were enjoined by their laws to secure all persons under its jurisdiction whether citizens, persons of foreign nationality or Stateless the enjoyment of the enumerated human rights and fundamental freedom. It was contended that no such a law ensuring the right of a foreigner had been passed by the Government as indicated in Article 2. Therefore, it was argued that a foreigner in the absence of an express law made by the Central Legislature saving him the rights enumerated under Article 2 could not claim right to property while he was in India. I have not been able to appreciate the force of the argument. The article merely directs the obligation of a country towards its citizens and towards foreigners. But if there are no laws depriving either the citizen or a foreigner of any such right how it could be construed as negation of the right which he ordinarily possesses. In any case, in the absence of a law expressly taking away such a right it would be wholly fallacious to argue if the mere absence of a declaratory law as regards the foreigner should be construed as negativing the rights of a foreigner which he ordinarily possessed.

(10.) IN my opinion the judgment of the Court below is wholly erroneous in law and deserves to be set aside.

(11.) BEFORE we close, a direction for the refund of court-fee paid in this court and the Court of first appeal would be necessary under section 13 of the court Fees Act as the suit had been remanded for a decision on merits. The trial Court as also the First Appeal Court dismissed the case on a preliminary point. Accordingly, I direct that the appellant shall be granted a refund of the court-fees paid by him in this Court as also in the Court of First Appeal. A necessary certificate for the refund of court-fees under section 13 of the Court fees Act shall be issued. In the schedule of costs, the amount of court-fees which is to be refunded shall not be included and a note to this effect may be made.

(12.) I, therefore, allow the appeal and set aside the judgment and decree. I direct that the case shall now go back to the trial Court for adjudication of the plaintiffs claim on merits. The respondent shall bear the costs of this appeal. Counsels fee Rs. 250/-, if certified. Appeal allowed.