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Lakshmansa Babasa Chowdhary Vs. Lakshmansa Baloosa Powar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number O.C.J. Appeal No. 19 of 1928 and Suit No. 2664 of 1926
Judge
Reported inAIR1930Bom150; (1930)32BOMLR56
AppellantLakshmansa Babasa Chowdhary
RespondentLakshmansa Baloosa Powar
DispositionAppeal dismissed
Excerpt:
civil procedure code (act v of 1908), order xxx, rule 2 - suit by firm-plaint declared by mwnim-re-dedaratioii of plaint by a partner-non-disclosure of the partner's name tinder order xxx, rule 2 -practice and procedure.;a plaint filed on behalf of the firm and declared by a munim of the firm, can be allowed to be redeclared by a partner of the firm, although the name of that partner was not disclosed under order xxx, rule 2, civil procedure code 1908. - - all that he decided was to give permission to baloosa anandsa powar to ro-affirm the plaint describing himself as a partner in the firm, and if this has not been made sufficiently clear in the order we think that it would be as well that the order should be construed as meaning this that baloosa anandsa powar be allowed to redeclare..........the terms of order xxx, rule 1, of the civil procedure code, against the defendants. lakshmansa baloosa powar appears to be the minor son of baloosa anandsa powar. the plaint was declared by one narhar ramkrishna kulkarni, who, it transpires, is the munim of the plaintiff firm. an application was made subsequently for baloosa anandsa powar himself to re-affirm the plaint on the ground that he and defendant no. 1 were the partners in the first plaintiff firm. i do not wish at this stage to enter into the question of a firm suing one of its partners.2. when the defendants applied under order xxx, rule 2, for the names of the partners in the plaintiff firm, narhar kamkrishna kulkarni declared that they were the minor lakshmansa and defendant no. 1. assuming that the declaration is untrue.....
Judgment:

Norman Kemp, Kt., Ag. C.J.

1. This suit was filed in the name of Lakshmansa Baloosa Powar, a firm, under the terms of Order XXX, Rule 1, of the Civil Procedure Code, against the defendants. Lakshmansa Baloosa Powar appears to be the minor son of Baloosa Anandsa Powar. The plaint was declared by one Narhar Ramkrishna Kulkarni, who, it transpires, is the munim of the plaintiff firm. An application was made subsequently for Baloosa Anandsa Powar himself to re-affirm the plaint on the ground that he and defendant No. 1 were the partners in the first plaintiff firm. I do not wish at this stage to enter into the question of a firm suing one of its partners.

2. When the defendants applied under Order XXX, Rule 2, for the names of the partners in the plaintiff firm, Narhar Kamkrishna Kulkarni declared that they were the minor Lakshmansa and defendant No. 1. Assuming that the declaration is untrue and that the real partners are defendant No. 1 and Baloosa Anandsa Powar, all that it amounts to is that there has been a wrong declaration of the partners in the plaintiff firm. This itself is not a defect which is fatal to the suit. The suit was by the firm and it continues to be by the firm, the defect being that the names of the partners have boon wrong in the declaration. It is not necessary here for us to decide whether there exists the bar of limitation assuming that the application by Baloosa Anandsa was out of time. The appellant's learned counsel contends that the form of the order passed by Mr. Justice Davar amounted to an adjudication that Baloosa. Anandsa Powar and defendant No. 1 were partners in the firm. But turning to the judgment we are of opinion that it is clear that what the learned Judge said was that he did not wish to determine that question at that stage. All that he decided was to give permission to Baloosa Anandsa Powar to ro-affirm the plaint describing himself as a partner in the firm, and if this has not been made sufficiently clear in the order we think that it would be as well that the order should be construed as meaning this that Baloosa Anandsa Powar be allowed to redeclare the plaint describing himself as one of the partners of the plaintiff firm. We cannot vary the order in appeal because in the view which we take of the case there is no judgment from which under Clause 15 of the Letters Patent an appeal will lie to this Court, but the construction which we put on the order is sufficiently disclosed by the form which we have suggested the order should have taken.

3. The case of Imperial Pressing Co. v. British Grown Assurance Corporation, Ld. I.L.R. (1913) 41 Cal. 581 supports the view which we have taken as to the effect of a wrong disclosure of partners in a declaration under Order XXX, Rule 2.

4. The appeal is, therefore, dismissed with costs.


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