1. This is an application in revision by the original plaintiffs. They have come in revision against an order dated February 14, 1969 passed by the Second Extra Assistant Judge, Nagpur, in Civil Appeal No. 126 of 1967, arising out of the plaintiff's civil suit No. 89 of 1965 decided on March 31, 1967 by the Court of the 10th Joint Civil Judge, Junior Division, Nagpur. The action by the plaintiffs was for the recovery of damages on account of the loss of life of one Adkuji Vithobaji Meshram, the husband of applicant No. 1 and the father of applicant No. 2. It was alleged that he died due to the rash and negligent act of opponents Nos. 2 and 3, who were the original defendants Nos. 2 and 3 respectively. Defendant No. 2 was the driver who was running the bus of defendant No. 1-District Transport Company-and defendant No. 3 was the conductor. It appears that defendants Nos. 2 and 3 were trying to take this bus belonging to defendant No. 1 in a flood on a bridge on the river Aam near Umred on August 6, 1964. The bus capsized in the flood waters resulting in the deaths of some passengers including Adkuji.
2. Vishwanathrao Dhondbaji Samarth is described in the suit as a proprietor of defendant No. 1 District Transport Company, Nagpur. It was stated in the plaint that he was the proprietor of the District Transport Company. He had also admitted in his written statement that the bus which capsized was running on the road permit of District Transport Company, Nagpur, of which he was the proprietor. He was the proprietor also on the day of the accident. The trial Court decreed the plaintiffs' suit against all the three defendants.
3. The three defendants thereafter filed an appeal against that decree in the Court of the District Judge, Nagpur. Defendant No. 1 described himself as District Transport Company, Proprietor, Vishwanathrao Dhondbaji Samarth. During the pendency of the appeal in the District Court, Vishwanathrao Dhondbaji Samarth died in July 1965. Because of his death, the applicants here filed an application on December 6, 1968 that the appeal has abated because appellant No. 1's heirs were not brought on record in time. They pleaded that the appeal abated so far as the deceased appellant No. 1 was concerned.
4. The reply to this application of the applicants was that the District Transport Company, Nagpur was a partnership firm and that, therefore, the death of Vishwanathrao did not adversely affect the appeal. The learned Extra Assistant Judge held, by his order dated February 14, 1969, that the appeal does not abate. He, therefore, dismissed the application of the applicants. It is against this order of the Extra Assistant Judge that the applicants (who were original plaintiffs) have come here in revision. The only point, therefore, that arises here is to see whether this order of the Extra Assistant Judge is legal and proper.
5. After going through the record, it is clear that the applicants, who are the original plaintiffs, had filed their suit against defendants Nos. 1, 2 and 3, for damages on account of loss of life of Adkuji Vithobaji Meshram. Defendant No. 1 is described as District Transport Company, Nagpur, Proprietor Vishwanathrao Dhondbaji Samarth, aged 50 years etc., resident of Reshim Oli, Budhwari, Nagpur, Tahsil and District Nagpur. It is also stated in para. 3 of the plaint that Vishwanath is the proprietor of the District Transport Company. The defendants in the suit had also filed their joint written statement. All the three defendants had mentioned in para. 3 of their written statement that the allegations in para. 3 of the plaint were admitted. This written statement is not only signed by Vishwanath Dhondbaji Samarth but also by the other two defendants. During the course of the trial, Vishwanath did not examine himself because he was not an eye-witness to this incident and he was merely running on the road his bus-BYY 2245 with the help of defendants Nos. 2 and 3. Defendant No. 2 who was the driver of the bus at the time was, therefore, examined by these defendants. This defendant had admitted during the course of his evidence as follows:
The bus-BYY-2245 was running on the route permit of District Transport Company, Nagpur, of which the proprietor was Vishwanath s/o Dhondbaji Samarth. He is still the proprietor. He was the proprietor on the day of the accident.
Therefore, during the course of the evidence also the defendants admitted the proprietorship of Vishwanath Dhondbaji Samarth. It is in the context of these circumstances that a decree ultimately came to be passed against all the three defendants, as prayed by the plaintiffs. Against this decree, the three defendants filed an appeal before the Court of the District Judge. Even in the appeal, which is Civil Appeal No. 126 of 1967, defendant No. 1 described himself as 'District Transport Company, Nagpur, Proprietor Vishwanath Dhondbaji Samarth'. Evidently, therefore, he again described himself as the proprietor of the District Transport Company while in the appeal. All these circumstances, therefore, clearly show that the District Transport Company was owned by the sole proprietor Vishwanath Dhondbaji Samarth. This was, therefore, treated all throughout the course of the civil action as well as while filing an appeal as the proprietary concern of Vishwanath Dhondbaji Samarth.
6. It, however, appears that Vishwanath Dhondbaji Samarth died pending the appeal. Therefore, the applicants who were the respondents there had filed an application on December 6, 1968 that an order may kindly be passed that the appeal has abated so far as appellant No. 1 is concerned, the ground given was that the suit was decreed jointly and severally against the appellants; that Vishwanath Dhondbaji Samarth carried on the business as the proprietor of the District Transport Company; that his heirs had not been brought on record hi time. It is at this stage of the proceeding that one Ajaya alias Baba s/o Vishwanath Samarth filed a reply. He has for the first time mentioned in his reply that before and upto the date of death of Vishwanath Samarth, the partners of the District Transport Company were Shamrao s/o Dhondbaji Samarth, Vishwanath Dhondbaji Samarth, and Ajaya alias Baba s/o Vishwanath Samarth. After the death of Vishnath Samarth, the partners are Ajaya s/o Vishwanath Samarth and his1 mother Chandrabhagabai w/o Vishwanath. In other words, it was contended at this stage that the firm District Transport Company was not a proprietary firm but was a partnership firm. On the basis of this plea, it was pleaded that the right to sue still survives to the partners and, therefore, the appeal cannot abate. The learned Assistant Judge took into consideration this plea of Ajaya and decided that the appeal does not abate.
7. We have seen that Vishwanath Dhondbaji Samarth was treated by the applicants as the proprietor of the Transport Company and the firm was never treated as a partnership firm at all. Vishwanath Dhondbaji also admitted that he was the proprietor and that it was not a partnership firm at all. In other words, the whole action was on the basis of his proprietorship. A decree accordingly was passed in the context of these circumstances. The point, therefore, that arises here now is to see whether the son Ajaya Vishwanath can turn round at this stage of the appeal after producing the documents and say that the Transport Company was not a proprietary concern but was only a partnership concern. Can he rely for this plea on the provisions of Order XXX, Rule 4 of the Civil Procedure Code? Now, Order XXX, Rule 4, Civil Procedure Code deals with the suits by or against firms and persons carrying on business in names other than their own. In so far as Rule 4 of Order XXX is concerned, it deals only with the right of suit on the death of a partner. We have seen that all throughout the action by the applicants there was no question of any partnership of the District Transport Company. On the other hand, it appears that this suit could be said to come within the purview of Rule 10 of Order XXX which deals with a suit against persons carrying on business in a name other than his own. Under that rule, any person carrying on business in a name or style other than his own name may be sued in such name or style as if it were a firm name. Under Order XXX, Rule 10, such a suit could be filed and it does appear that the applicants had filed the suit in such name, because he was carrying on his business in the name of the District Transport Company. Under Rule 10, so far as the nature of the ease will permit, all rules under Order XXX shall apply. The point, therefore, that arises how is to see whether Rule 4 of Order XXX will apply to the facts and circumstances of our case.
8. Rule 4 of Order XXX, Civil Procedure Code is as follows:
4. (1) Notwithstanding anything contained in Section 45 of the Indian Contract Act, 1872, where fed or more persons may sue or be sued in the name of a firm Under the foregoing provisions and any of such persons dies, whether before the institution or during the pendency of any suit, it shall not be necessary to join the legal representative of the deceased as-a party to the suit
(2) Nothing in Sub-rule (1) shall limit or otherwise affect any right which the legal representative of the deceased may have-
(a) to apply to be made a party to the suit, or
(b) to enforce any claim against the survivor or survivors.
It is, therefore, clear that Rule 4 contemplates a partnership firm and not a business in a name or style other than the name of the person who carries on that business. It appears to me, therefore, that Rule 4 will not apply to the facts and circumstances of our case. If it does not apply, then, naturally the legal representatives of the proprietor Vishwanath Dhondbaji ought to have been brought on record within the period of limitation. If that is so, then the appeal should abate in so far as defendant No. 1 is concerned.
9. I am aware of a case of Motilal v. Chandmal : AIR1924Bom155 . This was a case in which the plaintiff had sued on May 30, 1921 'Chandmal as manager and owner of the shop Manmal Chandmal' on a cause of action which accrued on May 16, 1918. Chandmal having died on September 27, 1920, his heirs were, on plaintiff's application, brought on the record on September 27, 1921. The trial Court dismissed the suit on the preliminary ground that the suit must be deemed to have been instituted against the heirs on the day on which they were brought on the record, and that as such it was time-barred. It was held by this Court in 1923 reversing that order, that though not in form yet in substance the plaintiff sued the firm of 'Manmal Chandmal'; and that the further description of the defendant as 'Chandmal, the manager and owner of the firm' might be treated as a mere surplusage. The judgment is very short. This judgment, undoubtedly, prima fade, is against the applicants before me and supports the case of the opponents. But this was a case in which the point arose while the suit was still pending. On May 30, 1921 the suit was filed and Chandmal was already dead before the filing of the suit, on September 27, 1920. Perhaps, in the context of the circumstances of that case, this Court held that the description 'Chandmal the manager and owner of the firm' was a mere surplusage. But the facts and circumstances of our case are quite different. We are not at the stage when the action was started. We are at a stage when a decree was already passed. Throughout the action Vishwanath described himself as the proprietor. He admitted that he was the proprietor. He had also filed this appeal as 'proprietor' of the transport company. Therefore, in the context of these facts and circumstances, the description of defendant No. 1 'District Transport Company, proprietor Vishwanath Dhondbaji Samarth' cannot reasonably be said to be a mere surplusage. This is also not a case where two or more persons are sued in the name of a firm as laid down in Rule 4.
10. In Mathuradas Canji v. Ebrahim Fazalbhoy I.L.R. (1927) Bom. 986 : 29 Bom. L.R. 1296 where Rule 4 was discussed, this Court considered the ease in Motilal v. Chandmal. That was an appeal from the judgment of Mr. Justice Rangnekar. The question was whether when a plaintiff brings a suit for debt against a partnership firm as such, but the firm had been dissolved to the knowledge of the plaintiff prior to the suit, it was necessary to add the legal personal representatives of the deceased partner as parties, in order to enable execution to be levied against the estate of the deceased partner. It was conceded there that the partnership assets may be taken in satisfaction of a decree in a suit so framed. But the point was, could the estate of the deceased partner be reached irrespective of his share in the partnership assets? Mr. Justice Rangnekar held that in such a case it was necessary to add the legal personal representatives and that as those representatives were not parties to the original suit but were added subsequently when the period of limitation had expired, the suit against them ought to be dismissed. The plaintiffs there, therefore, filed an appeal. This Court in that case considered Order XXX, Civil Procedure Code which was similar to the English Rules of the Supreme Court, Order XLVIII-A. While dealing with Rule 4, this Court also dealt with Section 45 of the Indian Contract Act, which differed from a similar section from the corresponding English Law. After referring to several cases that were cited at the bar there, it was observed that Rule 4 came to be framed because of certain inconsistencies in the judgments of the Calcutta and the Bombay High Courts; that this rule was, of course, with reference to the partnership firm and not the proprietary firm, that Order XXX, Rule 4, was enacted to set at rest the doubt that existed in connection with Section 45 of the Indian Contract Act, and to provide that where two or more persons may sue in the name of the firm and any of such person dies, it shall not be necessary to join the legal representatives of the deceased partner, but it was not intended that a suit in a firm name should be deemed to include the personal representatives of a deceased partner. Rule 4 of Order XXX, Civil Procedure Code, therefore, contemplated a ease only of a partnership firm and not a proprietary firm.
11. Jivraj v. Bhagvandas : AIR1923Bom66 and Motilal v. Chandmal were cited before their Lordships at that time (in Mathuradas Canji v. Ebrahim Fazalbhoy). They have distinguished those eases by observing that the attention of the Court was not drawn to the authorities, which were referred to by their Lordships in Mathuradas Canji v. Ebrahim Fazalbhoy and that there were no authorities also referred to in the said judgments. It was also observed that the substituted defendants in the case before them (i.e. Mathuradas Canji v. Ebrahim Fazalbhoy) represented the estate of the deceased partner and, therefore, they could not be covered by the firm name, and are necessary parties, if it was sought to render liable the estate of the deceased partner. Another case cited, viz. Rampratab v. Gavrishankar (1922) 25 Bom. L.R. 7 was approved in this case (i.e. Mathuradas Canji v. Ebrahim Fazalbhoy).
12. A point arose in Rampratab v. Govrishanhar, which was more or less similar to the point which arose here. The plaintiffs had filed a suit against the firm of defendant's father who was carrying on business at Ambala in the Punjab, to recover a sum of money due to the plaintiffs. The suit was filed after obtaining leave under Clause 12 of the Letters Patent. The plaintiffs were informed by the defendant's attorneys that the defendant's father who was the sole owner of the firm had died before the institution of the suit and that his mother was managing the estate on behalf of the defendant, who was a minor. Thereupon, the plaintiffs got the title of the plaint amended by bringing the name of the defendant on record. Though the defendant resided at Ambala and part only of the cause of action had arisen in Bombay, no leave under Clause 12 of the Letters Patent was obtained before the defendant was brought on record. It was held that the suit as originally instituted was not merely against a wrong person, but against no person at all, and that leave ought to have been obtained under Clause 12 of the Letters Patent as the defendant was to all intents and purposes a new party to the suit. It was observed during the course of the judgment that Order XXX, Civil Procedure Code deals with the partnership firm; that one man cannot constitute a firm; that when a suit is brought against such person in the name in which he carries on business, the suit is essentially one against him and he is the sole defendant in the suit. In our case too the legal representatives are to all intents and purposes new parties and they are substituted to reach the estate of the deceased.
13. In the case before me, an action was brought against Vishwanath Samarth in the name 'District Transport Company', in which name he carried on the business. He admitted this fact. He has also appealed in that name. The suit therefore is essentially against him. Such an action will then come within the purview of Order XXX, Rule 10, and not under Rule 4, which contemplates an action against a partnership firm. Order XXX, Rule 4 does not at all deal with the proprietary firm.
14. Therefore Ajaya Vishwanath's plea cannot be entertained. Because Vishwanath Samarth's legal representatives were not brought in time, the appeal of appellant No. 1 (original defendant No. 1) has abated. It would, therefore, be difficult for me to agree with the finding of the trial Court. This revision application, therefore, will have to be allowed. I allow this application with costs and set aside the order passed by the Extra Assistant Judge. The appeal, therefore, should be treated as having abated in so far as appellant No. 1 in Civil Appeal No. 126 of 1967 is concerned.