John Beaumont, Kt., C.J.
1. This is an appeal from an order made in chambers by Mr. Justice B. J. Wadia. The suit was filed on April 23, 1031, and the plaintiff was described as ' Messrs. Jitta Amichand and Co., a firm of bankers carrying on business at Karwar Street within the Forti of Bombay', and the declaration of the plaint was made in the name of Naimal Pratapmat described as a 'partner in the plaintiff firm residing at Karwar Street in Bombay.' Various applications were made by the defendant's attorneys to-the plaintiff's attorneys to ascertain the names of the partners in the alleged plaintiff firm, and it is not putting it too high to say that the plaintiff's attorneys put off those requests. Eventually on August 5, 1931, the plaintiff obtained an ex parte order enabling him to amend the plaint by describing: the plaintiff as ' Naimal Pratapmal of Bombay Marwari carrying on business as Jitta Amichand & Co.' That is to say the plaintiffs substituted the name of an individual for the name of the firm. The defendant took out a summons in chambers to vacate that ex parte order, and on August 24, 1931, that summons was dismissed with costs, and from that order the defendant appeals.
2. A preliminary point is taken that no appeal lies from that order under Clause 15 of the Letters Patent, but I think our decision on the preliminary point and on the merits must turn upon the same question. Under Order XXX, Rule 1, any two or more persons claiming or being liable as partners and carrying on business in partnership in British India may sue or be sued in the name of a firm, and under Rule 10 of that Order any person carrying on business in a name or style other than his own may be sued in such name or style as if it were a firm name; but nowhere is it laid down that a person carrying on business in a name other than his own may sue in that name. He may be sued, but unless there are two or more persons in the firm the plaintiff cannot sue in a firm name. Therefore it is quite clear that the plaint as originally framed was wrong, and the question which we have to determine is whether the amendment had the effect merely of putting right an irregularity by describing the existing plaintiff correctly, instead of incorrectly, or whether at the date when the ex parte order was made the suit being in the name of a non-existent person was a nullity. It is clear that if the suit as framed was a nullity as being in the name of a non-existent person, then the ex parte order substituting the name of an existing person for a. non-existing person affected the rights of the defendant by preventing him from applying for an order dismissing the action. In that case I think the order would be appealable under Clause 15 of the Letters Patent. On the other hand if the effect of the order was merely to describe the existing plaintiff correctly, then I think the order was not appealable, because it was merely a matter regulating the procedure in the suit. Even if the order was appealable,, we should not entertain the appeal, if that was the effect of the order.
3. Mr. Coltman says that the action as instituted in the name of the firm which had no right to sue is a nullity, and he refers to a decision of Mr. Justice Blackwell in the case of Vyankatesh Oil Mill v. Velmahomed (1927) 30 Bom. L.R. 117 In that case a suit was brought in the High Court in the name of a firm which was carrying on business outside British India by one of its partners. On. objection being taken the plaintiff applied for leave to amend the plaint, and it was held by the learned Judge that the amendment ought to be allowed, but on stringent terms as to costs. Undoubtedly the learned Judge does in some portion of the judgment refer to the suit as a suit by a non-existent entity. But I do not think the learned Judge intended to hold that the suit was a suit by non-existent persons and therefore a nullity, because had he held that he would not have given leave to amend, since it is clearly impossible to amend a suit which is non-existent,
4. In my opinion the original plaintiff firm is identified as being in fact the present plaintiff and I think that the amendment of the plaint was only a correction of the plaintiff's name and not a substitution of an existent plaintiff for a non-existent plaintiff. Therefore the order was one for regulating procedure, and no appeal lies, and therefore we must dismiss the appeal with costs.
5. I agree.