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Purshottam Lal Jaitly Vs. W.T. Henley's Telegraph Works, Ltd. and Anr. (21.04.1933 - ALLHC) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1933All523; 145Ind.Cas.812
AppellantPurshottam Lal Jaitly
RespondentW.T. Henley's Telegraph Works, Ltd. and Anr.
Excerpt:
- - , makes it perfectly clear how far a firm, as distinguished from a 'registered company, can be represented by its individual partners. each of the partners who has entered appearance as such has precisely the same rights as regards the conduct of the case as one of several defendants having a common defence. we think that the premises, on which the learned subordinate judge based his conclusion, are not well-founded......one filed on behalf of defendant 2 was signed by. keshri narain, who is one of the partners of the firm p.l. jaitly and co. it is not quite clear as to who are the members of the firm p.l. jaitly and co; but it is no longer in dispute that keshri narain and pt. parshotam lal jaitly are two of the partners. the words 'and co.' forming part of the description of defendant 2, is a misnomer. it is not a company registered or otherwise. it is only a firm of which at least keshri narain and p.l. jaitly are members. it is also necessary to mention that defendant 2, that is, p.l. jaitly and co., represents defendant 1, namely, gorakhpur electric supply co., ltd., as its managing agents. the written statements, filed on behalf of the both the sets of the defendants; had therefore a common source,.....
Judgment:

Niamatullah, J.

1. This is an application for revision directed against an order passed by the learned Additional Subordinate Judge, Allahabad, in a regular suit pending before him. One of the questions arising in the case is whether the order is only an interlocutory order which cannot be questioned in revision, or whether it amounts to a 'case decided' within the meaning of Section 115, Civil P.C. It is only if the aforesaid order can be considered to amount to a 'decision' of a 'case' that the merits of the order fall to be considered.

2. It appears that the plaintiff, W. T. Henley Teleghaph Works Ltd., sued for recovery of a certain sum of money and impleaded the Gorakhpur Electric Supply Co., Ltd., as defendant 1 and P. L. Jaitly and Co., as defendant 2. The suit was contested by both the defendants, who filed separate written statements. The one filed on behalf of defendant 2 was signed by. Keshri Narain, who is one of the partners of the firm P.L. Jaitly and Co. It is not quite clear as to who are the members of the firm P.L. Jaitly and Co; but it is no longer in dispute that Keshri Narain and Pt. Parshotam Lal Jaitly are two of the partners. The words 'and Co.' forming part of the description of defendant 2, is a misnomer. It is not a company registered or otherwise. It is only a firm of which at least Keshri Narain and P.L. Jaitly are members. It is also necessary to mention that defendant 2, that is, P.L. Jaitly and Co., represents defendant 1, namely, Gorakhpur Electric Supply Co., Ltd., as its managing agents. The written statements, filed on behalf of the both the sets of the defendants; had therefore a common source, namely, P.L. Jaitly and Co. Messrs. Ladli Prasad and Radha Charan, advocates, were retained for defendant 1 by Pandit Parshottam Lal Jaitly, who signed a vakalatnamah in their favour. Messrs. Kampta Prasad Kacker and Vidhya Dhar were retained on behalr of defendant 2, and a vakalatnamah in their favour was executed by P. Parshotam Lal Jaitly. The case proceeded to trial for a considerable length of time. On 10th January 1933 Mr. Ramnama Prasad, acting under instructions from P. Parshotam Lal Jaitly, presented an application that the latter had not been impleaded in the suit which was consequently defective and liable to dismissal. It was prayed that the suit be dismissed on that ground. The learned Judge dismissed this application for certain reasons, which it is not necessary to mention. That order became final and has not been questioned in revision before us. Immediately after that order was passed, Mr. Ramnama Prasad, again professing to act on behalf of P. Parshotam Lal Jaitly, presented an application, which referred to the Court's recent order of 10th January 1933 and prayed ' that this Court be pleased to decide whether the petitioner can as a proprietor of defendant 2 go on with the case or not.' This application was disposed of by an order of the same date, which is in question in revision before us. The application, dated 11th January 1933, asked for the decision of a question which, so far as the proceedings preceding that application show, had never arisen. The order of the Court however shows that P. Parshotam Lal Jaitly's misgiving regarding his right to take part in the conduct of the suit were not altogether unfounded. The learned Judge passed an order which negatives that right. The material portion of that order is as follows:

Yon had a right to put in a written statement or contest, if you desire and at the proper time. If you want now to go on with the suit, you must ask to be allowed to defend or put in a contest and contest the suit, but you cannot be allowed to come in at any moment and say as you also are a member or the proprietor you can be allowed to cross-examine the plaintiff's witness or produce evidence on your own behalf without having actually filed any ' contest or made appearance when you might or ought to have done so. So I cannot allow you now to cross-examine plaintiff's witnesses or to produce evidence on. your own behalf.

3. It seems to us that there was some confusion of thought in the minds of counsel appearing before the lower Court on 11th January 1933 and of the: lower Court itself. The position of a firm is materially different from that of a registered company when it sues or is sued. Order 30, Civil P.C., makes it perfectly clear how far a firm, as distinguished from a ' registered company, can be represented by its individual partners. We confine our remarks to cases in which a firm is sued, and refrain from taking any notice of those provisions of Order 30 which relate to cases in which a firm is plaintiff. It will appear from Rule 6 that:

where persons are sued as partners in the name of their firm, they shall appear individually in their own names but all subsequent proceedings shall nevertheless, continue in the name of their firm.

4. It is clear that the defendant firm can put in its appearance in the manner provided by Rule 6, that is its individual members should put in appearance but the description of the defendant must continue to be as before, that is, the name of the firm. Where some only of a large number of partners put in appearance, the fact will be duly recorded; and if appearance has not been put in by all the partners, the case will be one in which some only of the partners have appeared and others have not. The suit being one in which the entire firm is sued, the liability of each partner is not several but a collective liability, unless any particular partner is impleaded for some reason in his individual capacity, in which case he should figure as a party wholly apart from his capacity as a partner. Each of the partners who has entered appearance as such has precisely the same rights as regards the conduct of the case as one of several defendants having a common defence. The name of the firm is only a compendious description of the partners in reference to the common interest which they possess in a certain concern. When the firm is arrayed as a defendant, all the partners should be deemed to be in the array of the defendants in their capacity as partners. Order 30, Rule 1(2), Civil P.C., provides that:

where persons sue or are sued as partners in the name of their firm, it shall, in the ease of any pleading or other document required by or under this Code to be signed, verifide or certified by the plaintiff or the defendant, suffice if such pleading or other document is signed, verified or certified by anyone of such persons.

5. In this case, the written statement signed by one of the partners, namely, Keshri Narain, was filed. It should be considered to be the written statement of the firm, that is, of all the partners constituting it. P. Parshotam Lal Jaitly should therefore be considered to have contested the suit. Messrs. Kampta Prasad Kacker and Vidhaya Dhar, whose vakalatnamah was signed by P. Parshotam Lal Jaitly, appeared on behalf of defendant 2. We do not consider it necessary to decide whether P. Parshotam Lal Jaitly had the authority to empower the aforesaid advocates to appear for all the partners. At any rate, the authority conferred by him was effective so far as he was concerned. Similarly, Mr. Ramnama Prasad, whose vakalatnamah was signed by P. Parshotam Lal Jaitly, could legally represent him in the proceedings. The Court never ordered the proceedings to be exparte against the firm or any member thereof. It is thus clear that P. Parshotam Lal Jaitly, who is admittedly a member of the firm 'P.L. Jaitly and Co.,' entered the appearance through his authorised counsel up to the date on which the order in question in this revision was passed. We think that the premises, on which the learned Subordinate Judge based his conclusion, are not well-founded. P. Parshotam Lal Jaitly did contest the suit, and the learned Subordinate Judge's assumption to the contrary is not correct. That he put in appcarance as one of the partners of the firm is also undeniable. As a defendant in the case he was as much entitled to cross-examine the plaintiff's witnesses and to produce evidence for defence as any other defendant. It is not necessary, for the purposes of this case, to decide whether the firm as a whole will be bound by what he does in conducting the case. It is however unquestionable that, in conducting the case, he is bound by the written statement filed on behalf of the firm, and his conduct of the suit should not travel beyond it. For the reasons discussed above, we are of opinion that the order passed by the lower Court was not in accordance with law.

6. The next question is whether the order is one which can be interfered with in revision. We are of opinion that the lower Court's decision that the defendant is not entitled to take part in the conduct of the case amounts to a 'case decided' within the meaning of Section 115, Civil P.C. In depriving P. Parshotam Lal Jaitly of his right to cross-examine the plaintiff's witnesses and to examine witnesses in defence the lower Court acted illegally in the exercise of its jurisdiction. The result is that this application is allowed. The order of the lower Court is set aside and it is declared that Pandit Parshotam Lal Jaitly, as one of the partners of the firm P.L. Jaitly and Co., is entitled to cross-examine the plaintiff's witnesses and to examine such witnesses on his own behalf as he may be advised, provided there is no other circumstance in the case which disentitles him of these privileges. We direct that the parties should bear their own costs of this revision, in view of the fact that P. Parshotam Lal Jaitly could have had the plaintiff's witnesses cross-examined and evidence led for defendant 2 through his counsel, in whose favour a vakalatnamah on behalf of the firm had been executed.


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