1. The plaintiffs have filed this suit against Laxmandas Shivlal who are described as a firm carrying: on business as merchants at Parbhani in the territories of H.E.H. the Nizam of Hyderabad. In paragraph 9 of the plaint they have stated that a material part of the cause of action in this suit has arisen in Bombay and that with leave granted under Clause 12 of the Letters Patent this Court would have jurisdiction to entertain this suit. Leave under Clause 12 of the Letters Patent was granted and the plaint was admitted on the file by the chamber Judge on June 22, 1933. It is not mentioned anywhere in the body of the plaint that the plaintiffs were suing a firm consisting of a single proprietor. On the face of the plaint, the plaint did not fall within the provisions of Order XXX, Rule 1, which enables 'any two or more persons claiming or being liable as partners and carrying on business in British India to sue or to be sued in the name of the firm of which such persons were partners at the time of the accruing of the cause of action.' The plaint on that ground should have been rejected.
2. On July 10, 1933, the plaintiffs obtained a chamber order (exhibit B) from the Prothonotary and Senior Master ordering that the writ of summons in this case should be served by registered post on behalf of the defendant firm upon one Hemraj Shivlal at his address at Parbhani in the territories of H.E.H. the Nizam of Hyderabad. Mr. Amin, on behalf of the plaintiffs, asks me to infer from a recitation in this order which is that Hemraj Shivlal was carrying on business in the name of the firm Laxmandas Shivlal that Hemraj was being sued personally in this case as the sole proprietor of the defendant firm. The affidavit of service, exhibit 4, shows that the registered letter containing copy of the writ of summons was served upon one Madhavrao Tata, who has signed the acknowledgement on behalf of Hemraj Shivlal. Prior to the institution of the suit, the defendants' attorneys by their letter, exhibit A, dated October 14, 1932, had informed the plaintiffs' attorneys that Hemraj Shivlal was the sole proprietor of the firm carried on in the name of Laxmandas Shivlal. The plaintiffs' attorneys evidently lost sight of this fact when they gave instructions to counsel to draw the plaint The defendant firm filed points of defence on August 26, 1933. In these points of defence the defendant firm has not specifically raised the point that the suit is not maintainable. Both in paragraph 3 and in paragraph 5 of the points of defence, the defendants state that Hemraj Shivlal is the proprietor of the defendants' firm. On November 7, 1933, the defendants addressed their letter (exhibit 1) to the plaintiffs' attorneys enclosing therein a consent precipe for being signed by the plaintiffs' attorneys for taking further points of defence of the defendants on the file, and a copy of the further points of defence which the defendants were proposing to file. The further points of defence of which a copy was sent contained only one paragraph which was as follows:
The defendant firm carries on business at parbhani in the Territories of H.E.H. the Nizam of Hyderabad and the suit as framed is not maintainable and should be dismissed with costs.
3. The plaintiffs' attorneys, by their letter, dated November 9, 1933, (exhibit 2), declined to sign the consent precipe and objected to the new plea being raised at that stage of the proceedings. They intimated that if the defendants wished to make an application to the Court for taking the supplemental points of defence on file they should give proper notice to the plaintiffs who were desirous of opposing the application. Prior to addressing their letter, exhibit 1, the defendants' attorneys had, on October 31, 1933, addressed a letter, exhibit 3, to the plaintiffs' attorneys. In that letter they had inter alia stated as follows:
We have also to inform you that at the time of the hearing of the suit, our clients will plead that the defendant firm being a foreign firm cannot be sued and hence the suit as framed is bad in law and should be dismissed with costs.
4. On the suit being called on before me to-day, after the pleadings were read and issues framed, Mr. Maneckshaw, on behalf of the defendants, invited me to try a preliminary issue which might dispose of the suit. That issue is:
Whether the suit as framed is maintainable?
No objection having been raised to that course being followed, I have heard arguments on the issue which is purely an issue of law. Mr. Amin admits that if the provisions of Order XXX, Rule 1, were applicable to the present case, the suit would not be maintainable against the defendants on the face of the plaint, which shows the defendants to be a foreign firm. But he has contended that the present case is covered by Order XXX, Rule 10, which is in general terms. Order XXX, Rule 10, is in these terms:
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; and, so far as the nature of the case will permit, all rules under this Order shall apply.
There is no specific mention in this rule as there is in Order XXX, Rule 1, that the business carried on should be in British India in order that this rule may become applicable. Mr. Amin has relied upon the analogous Rules 1 and 11 under Order 48A of the Supreme Court Rules. Both these rules of the Supreme Court contain a clause confining their application to cases where the business is carried on within the jurisdiction of the Court. The analogous clause in Order XXX, Rule 1, seems to be somewhat wider, inasmuch as the application of that rule is not restricted to cases which fall within the jurisdiction of the Court, but apply to the whole of British India.
5. The question here to consider is, whether under Order XXX of our Civil Procedure Code, Rule 10 is subject to the same restriction as Rule 1. On this point there is no decided case to which my attention has been called. The important words in Rule 10 are : 'and, so far as the nature of the case will permit all rules under this Order shall apply.' If it was the intention of the legislature that Rule 1 should not apply, it would have stated so. If Rule 1 is to apply, it deals with cases where there are two or more persons claiming or being liable as partners. Under Rule 10 the case of the single proprietor trading in a firm name is to be treated as if the single proprietor so trading constituted a firm for the purpose of Order XXX, although under the definition of a firm under the Indian Contract Act there can be no firm unless there are at least two partners. If the case of a single proprietor is to be treated as a firm for the purpose of Order XXX, then the case in my judgment is clearly covered by Rule 1 which requires that the firm suing or being sued should be carrying on business in British India if it is to sue or to be sued under an abbreviated title as a firm.
6. Mr. Amin has relied on the case of Rampratab v. Gavrishankar (1922) 25 Bom. L.R. 7 where Mr. Justice Mulla, as he then was, has observed at pp. 10-11 of his judgment as follows:
The word 'firm' is a short, collective name for the individuals who constitute the partners, and though under the Rules of the Supreme Court and under the Code of Civil Procedure actions may now be brought by and against partners in the name of their firm, the general doctrine that 'there is no such thing as a firm known to the law per James L.J. in Ex parte Corbett (1880) 14 Ch. D. 122 remains in force. It follows from this that a suit against a firm is essentially a suit against the partners constituting the firm....
Turning now to suits against a person carrying on business in a name other than his own, the Code of Civil Procedure, Order XXX, Rule 10, provides that he may be sued in that name as if it were a firm name. The words 'as if it were a firm name' are used advisedly, for one man cannot constitute a firm. 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.
Mr. Amin has argued that the defendant firm and Hemraj Shivlal its sole proprietor are one and the same person and the suit is in order. I am unable to agree with this contention. The suit is not against Hemraj Shivlal, but it is against Laxmandas Shivlal, a firm. If Mr. Amin's contention were correct, it might lead to this result, that when a suit is filed against a foreign firm its maintainability would depend upon its being owned by a single individual. That would lead to an inquiry in each case as to the constitution of the firm under its own foreign laws. Instead of simplifying the procedure as Order XXX aims to do, such an inquiry would necessarily complicate the situation. In my judgment the legislature could not have contemplated such a result. The correctness of the ruling in Vallabhdas v. Keshavlal (1926) 26 Bom. L.R. 660 and in Vyankatesh Oil Mill v. Velmahomed (1927) 30 Bom. L.R. 117 that the provisions of Order XXX, Rule 1, of the Civil Procedure Code, are not applicable to foreign firms is not questioned by Mr. Amin.
7. Mr. Amin has applied that if the Court is against him on the merits of his contention, it should allow the plaintiffs to amend the plaint. I grant this application. The plaintiffs are given liberty to amend the plaint and proceedings by inserting the name of Hemraj Shivlal as party defendant in place of the firm Laxmandas Shivlal. The plaintiffs must; pay all costs occasioned by this amendment including the costs of to-day's hearing and of making the amendment. The defendant to be added is given liberty to file fresh points of defence. If no amendment is made within a week from this date, the suit is to be placed on board for dismissal. Liberty is given to the plaintiffs to apply for further directions on the summons for directions after the same is amended.