V.P. Tyagi, J.
1. This is defendant's first appeal against the judgment and the decree of the learned Additional District Judge No. 2, Jaipur City dated 21st September, 1974.
2. There is a building situate on the Mirza Ismail Road, Jaipur known as Bhagwat Bhawan. A part of this building was rented out to defendant M/s. General Auto Agencies for the rent of Rs. 425 per month. According to the plaintiff this part of the building was sold by the owners of the building to the plaintiff on 7th November, 1963, for Rs. 48,499, Shri Mangilal the proprietor of the building who sold it to the plaintiff wrote to the defendant on 7th December, 1968 that the premises had been purchased by the plaintiff, and, therefore, rent may henceforth be paid to the plaintiff. This notice was received by the defendant firm on 13th December, 1968 and it is alleged that thereafter the defendant started paying rent at the rate of Rs. 425 per month to the plaintiff and continued to pay it till February, 1969. It appears that the plaintiff did not accept the rent after February, 1969 and the money orders sent by the defendant to the plaintiff towards the payment of the rent was refused by the plaintiff. A notice (Ex. 5) was served on the defendant by the plaintiff on 3rd October, 1969 intimating him that the tenancy was terminated and that the defendant should hand over the vacant possession of the premises to the plaintiff. It was also mentioned in the notice that the plaintiff required the premises for his personal bona fide need for residential purpose as well as for carrying on the business of Chemical Limes produced by the plaintiff. This notice did not bring the desired effect on the defendant and the defendant did not hand over the vacant possession to the plaintiff. The plaintiff was, therefore, compelled to bring the present suit for ejectment of the tenant as well as for the arrears of rent.
3. It may be mentioned that the suit was filed against General Auto Agencies through its manager Shri Bhanwar Lal Bordia.
4. A written statement was filed on behalf of Shri Bordia accepting that the suit premises were rented out to General Auto Agencies but he is not a tenant as the General Auto Agencies was a proprietorship firm of one Shri Sobhagmal Lodha who died before the suit was instituted by the plaintiff. He further stated that he was a mere servant of the firm and, therefore, the plaintiff should have filed a suit against the proprietors of the firm. It was also alleged that M/s. General Auto Agencies was neither a partnership firm nor a body corporate and therefore it was not a juristic person hence a suit against M/s. General Auto Agencies was not maintainable. The bona fide and the reasonable need of the plaintiff for getting the premises vacated was also denied by the defendant. It was also averred that the premises rented out to M/s. General Auto Agencies were sold by the legal heirs of Mangilal in three bits. Besides the premises sold to the plaintiff, two pieces of land which were also the part of the defendant's tenancy were sold out to two different persons and unless all the three owners of the leased out property join to terminate the tenancy, the plaintiff alone cannot claim that the tenancy of the defendant was terminated by him and as such a notice Ex. 5 which should have been given by all the three owners of the leased out property was bad in law.
5. The defendant denied that he was a defaulter. On the first day of hearing i.e. or 21st April, 1970 the defendant brought to the notice of the court that he was not served with the correct copy of the plaint, and therefore, the court directed the plaintiff to supply the true copy of the plaint to the defendant and fixed 21st May, 1970 as the next date of hearing. On 21st May, 1970, the defendant tendered on behalf of the proprietors of the M/s. General Auto Agencies Rupees 12,225 as the arrears of rent and the interest on the amount for 27 months for which the rent had not been paid and claimed that the defendant in view of this deposit being made, could not be ejected by treating him as a defaulter.
6. The trial Court framed as many as 6 issues. The plaintiff came in the witness-box to prove his bona fide need for getting the vacant possession of the premises and in support of his plea he examined Dr. R. K. Sharma P.W. 2 in whose house the plaintiff used to live as a tenant and paid rent @Rs. 525 per month. Kalyan Singh P.W. 3, Ramratan P.W. 4 and Mohan Singh P.W. 5 were also brought in the witness-box. Bhanwar Lal Bordia the manager of the defendant concern along with Mool Singh D.W. 2 and Gopi Chand D.W. 3 were examined on behalf of the defendant.
7. The learned Judge after considering the evidence produced on behalf of both the parties, recorded a finding that the premises were required by the plaintiff for his bona fide and reasonable necessity for residence and business purposes. The learned Judge also found the defendant as a defaulter. The issue relating to the maintainability of the suit
against M/s. General Auto Agencies was also decided by the trial Court in favour of the plaintiff. As regards the defect in notice Ex. 5 the learned Judge held that the defendant could not establish that the premises rented out to the defendant by Mangilal or his predecessor-in-title included those pieces of land which were sold by the heirs of late Mangilal by executing sale-deed Ex. A/10 dated 29th September, 1968 and thus passed a decree of ejectment against the defendant and also for the mesne profits pendente lite @ Rs. 425 per month till the vacant possession was handed over to the plaintiff.
8. The defendant has filed this appeal against the said decree. Mr. S.C. Bhandari appearing on behalf of the defendant-appellant urged the following points before me :
(1) That the suit was not maintainable as it was filed against M/s. General Auto Agencies which was not a juristic person.
(2) That the defendant could not be declared as a defaulter after depositing Rs. 12,225 as arrears of rent for 27 months on the first date of hearing after he was properly served with the correct copy of the plaint by the court.
(3) That the notice being defective did not lay a valid foundation for filing the suit for ejectment and, therefore, the suit should have been dismissed on that ground, and
(4) That the plaintiff failed to prove his bona fide and reasonable necessity for getting a decree of eviction in his favour.
9. Let me examine these points one by one. I will first of all take up the question of reasonable and bona fide necessity of the plaintiff.
10. Hazari Singh is the manufacturer of lime at Moondewa. He generally used to reside at Jodlhpur but for some time past he shifted to Jaipur and took the house of Dr. R. K. Sharma P.W. 2 in Bapunagar on a rental of Rs. 525 per month. This fact is also not denied that the plaintiff is carrying on his business for the sale of lime in the name and style M/s. Chemical Limes and that he had opened his office in the rented premises in Bapiz Nagar. The suit premises were purchased from the owners of the building on 7th November, 1968, and the sale-deed Ex. 1 mentions that the plaintiff had invested this huge amount to acquire properties for his personal use i.e. for residential as well as commercial purposes. It is established from the testimony of Dr. R.K. Sharma P.W. 2 that the plaintiff at the time when he served the defendant with notice Ex. 5 was living in a rented house belonging to Dr. Sharma and that Dr. Sharma was in need of the accommodation for his residential purposes and he had served a notice on the plaintiff to vacate his house so that he (Dr. Sharma) could shift to his own house. There is a document Ex. 8 on the record a letter from Allied Products Agencies which shows that the plaintiff was in correspondence with the said agencies to acquire the agency rights for the sale of their products. But those rights could not be secured by the plaintiff till he had a show-room at his disposal to display the products of the said' agencies. The author of the letter Ex. 8 has not come in the witness-box to prove it. It simply shows that the plaintiff was on the look out to obtain the agencies for the manufactured goods of Allied products. But that letter alone in itself is not sufficient to establish that the plaintiff's need for getting the agencies of the allied products constituted a reasonable and bona fide necessity. That could be one of the factors which might have prompted the plaintiff to see that he may get the possession of the premises purchased by him from his tenants. Mr. Bhandari urged that except letter Ex. 8 no further correspondence has been brought on the record to show that the plaintiff was really after the agency of the Allied products and. therefore, it should be taken that the letter was written by the plaintiff to M/s. Allied Products Agency in order to create evidence to create a plea of bona fide necessity. Learned counsel for the plaintiff respondent on the other hand urged that even if the factor of procuring the agency for the Allied Products Agency is taken out of consideration, the need of the plaintiff to get the vacant possession of the premises purchased by him is otherwise established and it is that the plaintiff was in dire necessity of getting a house for himself and that he was carrying on his business of Chemical limes in the rented house situate in a non-commercial area i.e. Bapu Nagar therefore he wanted to shift that office immediately to the central place of business i.e. of Mirza Ismail Road. D. W. 2 Shri Moolsingh the ex-owner of the premises from whom the plaintiff had purchased the building, has stated in his cross-examination that the plaintiff had told him that he required the property for his own use. There was a pressure on the plaintiff from his own Landlord who wanted his house to be evicted because ha was himself living in a hotel and therefore the plaintiff, who had already purchased a building for his residential purpose as well for his business, naturally looked forward to see that such a building is handed over to him for his necessities. P.W. 4 Ramratan who works as a property agent for getting the deal of sale materialised, has lent support to the plaintiff's version that he needed the premises for his business as well residential purposes. The defendant on the other hand has examined D.W. 1 Bheronlal the manager of the concern but his testimony when weighed in the background of the depositions made by the plaintiff's witnesses, does not establish that the premises were not required by the plaintiff for his rea-sonable requirement. The plaintiff had no suitable alternative accommodation where he could shift from the rented house which was urgently required by the landlord and he could not perhaps find a better situation than the house purchased by him for carrying out his business of M/s, Chemical Lime and, therefore, his assertion that he needed the premises for his personal and bona fide use assumes considerable weight. Under these circumstances I do not find that the finding of the trial court on this issue needs interference at the hands of this Court.
11. As regards the question of default the following facts brought on the record are necessary to be considered. It is not denied that the defendant paid to the plaintiff the rent of the premises @ Rs. 425 per month upto February, 1969 and thereafter the amount of rent for four months remitted by the defendant by money orders was not accepted by the plaintiff. The defendant-appellant has produced documents Ex. A/1, Ex. A/2, Ex. A/3 and Ex. A/4 to proye that the rent was sent by money orders but the money orders were refused by the plaintiff. The plaintiff says that he did not refuse any money order. But in view of the endorsement on these documents that the money orders were refused by the addressee it is difficult for me to accept the contention of the plaintiff. But the fact whether the refusal of the money orders by the plaintiff absolves the defendant of his duty to continue to pay the rent to the plaintiff and can the defendant now say that since four money orders were refused by the plaintiff, he cannot be deemed to be defaulter. In this connection my attention has been drawn to a new section (Section 19-A) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, hereinafter called 'the Act', which casts a duty on fche tenant to deposit such rent with the court if the landlord refused to accept the rent tendered by the tenant. Such a deposit with the court shall be taken to be a full discharge of the duty from the liability to pay rent to the landlord. It is admitted by the parties that the defendant tenant did not take any proceedings to deposit the amount of rent under Section 19-A with the court. Lodha J. in Sobhraj v. Bhanwar Lal, 1974 WLN 270 = (AIR 1975 Raj 196) has observed :
'If the tenant wants to escape from the liability of .being ejected on the ground of rent having not been paid or tendered for six months he must make the deposit as provided under Section 19-A even though fche tender of rent by the tenant to the landlord has been refused once. If he does not do so and rests content by merely tendering the rent once which has been refused by the landlord he shall be deemed to have committed default in payment of rent due, and if such arrears mount for six months or more it would certainly become a ground for the landlord to seek ejectment on that basis.'
12. On the day when the suit was filed by the plaintiff for ejectment and arrears of rent, the rent for 27 months was due from the tenant and, therefore, the plaintiff had a right to file a suit for ejectment on the basis of default under tihe provisions of the Act.
13. The case of the defendant in this connection further is that after the suit was filed by the plaintiff, he was served with a summons to appear before the court on 21st April, 1971 but with that summons it is said proper copy of the plaint was not handed over to the defendant and, therefore, when the defendant put in his appearance before the court he lodged a grievance with the court that he should have been served with a proper copy of the plaint along with the summons. The court directed the plaintiff to hand over to the defendant the true copy of the plaint and fixed 21st May, 1971 as the next date of hearing. On that date the defendant deposited the arrears of rent along with the interest accrued thereon under the provisions of Section 13 (4) of the Act. It is said that the plaintiff accepted the rent and interest on that rent and filed a receipt in the court. The question is whether in these circumstances the plaintiff is entitled to get a decree for eviction on the ground of default
14. Sub-section (4) of Section 13 of the Act reads as follows :
'(4) In a suit for eviction on the ground set forth in Clause (a) of Sub-section (1), with or, without any of the other grounds referred to in that sub-section, the tenant shall, on the first day of hearing or on or before such date as the court may, on an application made to it, fix in this behalf, or within such time, not exceeding two months, as may be extended by the court, deposit in court or ,pay to the landlord an amount calculated at the rate of rent at which it was last paid, for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made together with interest on such amount calculated at the rate of six per cent. per annum from the date when any such amount was payable upto the date of deposit and shall thereafter continue to deposit or pay, month by month, by the fifteenth of each succeeding month a sum equivalent to the rent at that rate.'
15. The requirement of this sub-section is that on the first day of hearing or on or before such date as the court may on an application made to it, fix in this behalf, or within such time, not exceeding two months, as may be extended by the court, the tenant can deposit arrears of rent along with interest calculated at the rate of 6 per cent. per annum in the court. There are three contingencies which have been envisaged by the legislature for making the deposit or arrears of rent in this sub-section and they are, (i) that the tenant should make the deposit on the first day of hearing, (ii) or he should make such a deposit on or before isudh date as the court may, on an application made to it, fix in this behalf, and (iii) or if the time is extended by the court then within that extended time provided that it does not exceed two months.
16. It is admitted by the parties that the defendant did not make any application for the extension of time to enable him to deposit the arrears of rent nor did he make any application under Sub-section (5) of Section 13 to determine the .amount of rent .payable by the tenant. The only question therefore that remains to be decided is whether the depositing of the arrears of rent on 21st May, 1971 which was the next date of hearing after the first day of hearing, can it be said that the defendant had complied with the requirement of Sub-section (4) of Section 13 of the Act.
17. It is admitted by the defendant that he was served with the summons issued by the court to appear before it on 21st April, 1971 and in compliance thereof he did put in his appearance before the court. But instead of depositing the amount of arrears of rent with the court he simply expressed his grievance that he was not served with the complete copy of the plaint. The court however directed the plaintiff to supply the true copy of the plaint to the defendant and it was done by the plaintiff before the next date of hearing i.e. 21st May, 1971.
18. Learned counsel for the plaintiff respondent urged that the mandate of Sub-section (4) of Section 13 is that the tenant if he wants to avail of the another opportunity provided by the law to wash away his default, must deposit the arrears of rent along with the interest calculated @ 6 per cent. on the first day of hearing if he did not seek the extension of time for making such deposit in the court. The question is how the expression 'first day of hearing' is to be interpreted and whether in the circumstances of this case 21st April, 1971 shall be taken to be the first day of hearing or 21st May, 1971 to which date the case was adjourned, shall be taken as the first day of hearing.
19. This Court in Mangal Ram v. Smt. Chandravati Devi, 1969 Raj LW 525, Surai Bhan v. Chandra Prakash, 1969 Raj LW 315 and Mangal Ram v. Smt. Chandravati Devi, 1969 WLN 257 (Raj.) has interpreted the expression 'first day of hearing' and has laid down that this expression means first date fixed for return of summons or settlement of issues. I looked into the summons which was served on the defendant. The summons was issued to the defendant for the settlement of issues and was served on him before 21st April, 1971. The defendant appeared before the court in compliance with the mandate contained in the summons. The defendant did not make any application for the extension of time for making deposit of the arrears of rent before the court. If the defendant was keen to avail of the opportunity provided by the law under Section 13 (4) of the Act, then it was necessary for the defendant when he appeared before the court for the settlement of issues either to deposit the amount or to seek extension of time.
20. Learned counsel appearing on ibehalf of the appellant urged that if the summons did not carry with it the complete copy of the plaint then its service shall not be deemed to be a proper service in the eye of law. It is however not denied that the summons was issued for the settlement of issues. But according to him the issues could not be settled unless the pleadings were properly filed by the parties and as the defendant was not served with the complete copy of the plaint, he was not in a position to file his written statement and hence the issues could not be settled. I regret I cannot accept this argument of Mr. Bhandari because Section 13 (4) as interpreted by this Court on various occasions requires the payment of arrears of rent to be made on the first day of hearing i.e. when the defendant is required to appear before the :ourt for the purpose of settling the issues. It is immaterial whether the issues were or could 'be settled or not on that date. If for one reason or the other the issues could not be settled on that day then it cannot be said that that day was not fixed for the settlement of issues. The 'first day of hearing' has been interpreted by this Court as that day which is fixed by the court for the return of summons for settlement of issues and, therefore, in my opinion the 'first day of hearing' in the circumstances of this case was 21st April, 1971. Since the defendant did not strictly comply with the requirement of Section 13 (4) and did not deposit the arrears of rent with the interest on the first day of hearing, his subsequent depositing of the amount would not take him out of the expression 'defaulter'. On 21st April, 1971 the defendant was a defaulter and .as he did not deposit the amount according to the provisions of Section 13 (4) on that day he cannot now say that the decree of ejectment could not foe passed against him on the basis of being a defaulter.
21. Mr. Bhandari then urged that notice Ex. 5 served by the plaintiff is not in conformity with the requirement of Section 106 of the Transfer of Property Act as the plaintiff by that notice terminated the tenancy forthwith, therefore he could not seek ejectment of the defendant without properly terminating his tenancy. It may be observed at the very outset that this objection was never taken by the defendant in his written statement nor did he incorporate this ground in his memorandum of appeal but addressed the court on this point in his opening address without taking leave of the court. When the learned counsel for the respondent stood for a reply and raised the objection that the defendant appellant was not entitled to take up a new point which he never pleaded in his written statement nor was taken in the memorandum of appeal. Mr. Bhandari filed an application praying that he may ibe permitted to argue this question which was only a question of law. This application was filed when the learned counsel for the respondent was on his legs to address the court and replying to the arguments of Mr. Bhandari who had already closed his opening arguments. In these circumstances I feel Mr. Bhandari does not deserve leniency to deal with his prayer to allow him to argue this question, but since Mr. Bhandari already addressed the full-fledged arguments on this point without obtaining leave of the Court, I permitted learned counsel for the respondent to meet this point also as it is purely a question of law.
22. In order to decide this objection it will be convenient to look to the relevant portion of the language of notice Ex. 5 on which reliance has been placed by Mr. Bhandari. Para. 6 of the notice reads as follows:--
'That the premises mentioned above let out to you on rent are required reasonably and bona fide for the personal necessity of residence and business for which my client has purchased the premises mentioned above. My client does not want to keep you his tenant any longer and hereby terminates your tenancy by this notice and requests you to vacate the premises by the end of October, 1969 i.e. by the midnight of 31st October, 1969 or on such day on which you consider that your month of tenancy comes to an end.'
23. Mr. Bhandari wants this Court to give a meaning to the expression 'hereby terminates' that the tenancy was terminated forthwith when a notice was served on the defendant. While learned counsel for the respondent argued that this paragraph may be read as a whole and it clearly conveys to the defendant that the intention of the plaintiff was to terminate the tenancy from the last day when the month of tenancy comes to an end and, therefore, the expression 'hereby terminates' cannot be read to mean that the tenancy was terminated forthwith,
24. Mr. Bhandari argued that the court should draw a distinction between the terminating of tenancy and calling upon the tenant to deliver possession and urged that in the notice Ex. 5 the plaintiff terminated the tenancy by sending this notice and then made a request to hand over the possession of the property to the plaintiff by 31st October or on the last day of the month of the tenancy. In this connection reliance has been placed by Mr. Bhandari on Hakim Ziaul Islam v. Mohd. Rafi, AIR 1971 All 302 and drew my attention to the observations made by Desai C, J. in Ahmad Ali v. Mohammad Jamal Uddin, AIR 1963 All 581 wherein learned C. J. has observed as follows:--
'There is undoubtedly a distinction between terminating the tenancy at once and calling upon the tenant to deliver possession after 30 days and terminating tenancy after 40 days in the former case the relationship of landlord and tenant comes to an end at once and the tenant is given a right to remain in possession for 30 days either as a licensee or as a tenant on sufferance, whereas in the later case he remains a tenant for 30 days.'
25. Learned counsel for the respondent urged that there could not be any quarrel with the law laid down by Desai C, J, because according to Mr. Pareekh if the tenancy is terminated forthwith then the relationship of a tenant with his landlord comes immediately to an end and thereafter if the landlord requires the tenant to hand over the possession of the demised premises after some time then for that period the position of the tenant is that of a licensee or of a tenant on sufferance.
In Hakirn. Ziaul Islam v. Mohd. Rafi AIR 1971 All 302 I find that the notice indicated that the landlord wanted to terminate the tenancy immediately. This authority can help the appellant only if I hold that in the present case the counsel who had drafted the notice on behalf of the plaintiff indicated to the defendant the intention of his client to terminate the relationship of the landlord and the tenant immediately. The notice however, does not state that the tenancy was terminated forthwith. The expression 'hereby terminates' cannot be read to mean 'terminated forthwith'. The word 'hereby' means that the tenancy was terminated by that notice. The sentence when read as a whole makes it abundantly clear that the request was made by the landlord for the delivery of possession of the demised property either by the end of 31st October, 1969 or on such day on which the tenant considered that his month of tenancy came to an end. The notice in the light of its unambiguous language can be interpreted to mean that the counsel of the landlord indicated to the defendant that his client wanted to synchronise the act of termination of tenancy with the act of the delivering of vacant possession thereof. In my opinion the language used by the counsel for the plaintiff was intended to terminate the tenancy either on 31st of October or on the day on which the tenant considered that his month of tenancy expired. The notice Ex. 5 does not in any manner carry the idea that the landlord was keen to terminate the tenancy of the defendant immediately on the receipt of the notice. I, therefore, do not find any life in this argument also.
26. The defect of notice is a subject-matter of issue No. 4 which reads as follows:--
'Whether the plaintiff is one of three purchasers of the disputed property and so he was not entitled to terminate the tenancy and the notice given by him is not valid. If so, to what effect?'
27. The validity of the notice is also challenged on the ground that the plaintiff alone was not competent to terminate the tenancy when the part of the land demised was sold by the previous landlord to two other persons who did not join the plaintiff to terminate the tenancy of the defendant. Mr. Bhandari could not point out any material on the record to show that the pieces of land sold out to two other persons were also leased out to the defendant along with the premises which were sold out to the plaintiff. On the contrary I find that after the suit premises were sold out to the plaintiff, the previous landlord sent a letter to the defendant on 7th December. 1963 asking him to pay the rent in future to the plaintiff. In pursuance of that letter the defendant for some time paid the entire rent to the plaintiff. Shri Gopichand D.W. 3 who had purchased the land for his minor ward which is said to be leased out to the defendant, has come in the witness-box but he does not say that the defendant was his tenant in respect of that land. Defendant did not pay a single pie as rent to the other purchasers. It is true that after the suit was filed the defendant somehow managed to get a letter issued by the previous owner of the suit premises to the defendant saying that he was the tenant of the two other purchasers of the plots of land which once constituted a portion of the Bhagwant Bhawan. But nobody is prepared to say that the property which was sold to the plaintiff was leased out to the defendant along with the parcels of the land sold out to the other two purchasers simultaneously or that the lease granted to the defendant by the previous owner of Bhagwant Bhawan was one in respect of all the properties covered by the 3 different sale-deeds, one in favour of the plaintiff and the other sale-deeds Ex. A-10 and Ex. A-11. In this view of the matter I find it difficult to accept the contention of Mr. Bhandari that all the three purchasers must have joined together to terminate the tenancy of the defendant otherwise Tenancy was not validly terminated by notice Ex. 5.
28. Now remains the question of the maintainability of suit against General Auto Agency which according to Mr. Bhandari is not a juristic person.
29. The suit is filed against M/s. General Auto Agency. M. I. Road, Jaipur through its manager Shri Bhanwar Lal Bordia. The plaint is silent on this point whether the concern M/s. General Auto Agency is a partnership firm or it is a body corporate and as such it could be sued under Order 30. C.P.C. in the manner in which the present suit has been filed. Mr. Bordia while filing his written statement brought certain facts on the record which go to show that M/s. General Auto Agencies was a proprietary con-tern of Shri Sobhagmal Lodha but Mr. Lodha died before the suit was actually instituted. He did not disclose in his written statement the name or the names of the proprietors of the concern. He simply stated that he is a servant of the proprietors. Beyond this he did not furnish any information as to who manages the concern. The main contention of Mr. Bhandari is that if the plaintiff has preferred to sue a concern by its trade name then it is the duty of the plaintiff to show as to how and under what law the suit is maintainable against the trade name of a concern which is not a juristic person. He further urged that if there .are more than one proprietor of the concern then Order 30, Rule 10 would not apply to such a concern. According to Mr. Bhandari the provisions of Order 30, Rule 10 can be attracted only when the suit is filed against, a concern that has only one proprietor and it is only in that case that it can be sued by its trade name. In support of this contention reliance has been placed by him on two authorities, i.e. M.A. Chidambaram Chettiar v. National City Bank of New York, AIR 1936 Mad 707 and Re. Arbn. Munshilal and Sons v. Modi Bros., (1947) 51 Cal WN 563. In Chettiar's case the suit was brought under Order 30, Rule 10, C.P.C. against the business which was described in the plaint as R.M. P.M. Chettiar firm carrying on business at Rangoon'. In the execution of the decree the property of the four minors owning that business was attached. An objection was raised that the suit could not be filed under Rule 10 of Order 30 C.P.C. which provision was not applicable to the concern owned by more than one proprietor. The learned Judges relying on certain English authorities observed as follows:--
'Rule 10, Order 30 stands in marked contrast with Rule 1. The latter rule applies to 'any two or more persons', whereas Rule 10 refers to 'any person carrying on business'. There is no reason to depart from the view taken in the English cases and we must hold that Rule 10 is applicable only to the case of a single individual. In this case, the so-called assumed name is said to be the name of the business owned by the four minors and the rule is, in our opinion, utterly inapplicable.'
30. The view expressed by the Madras High Court with regard to the applicability of Rule 10, Order 30 is endorsed by Das J. in Re. Arbn. Munshilal and Sons v. Modi Bros., (1947) 51 Cal WN 563. The learned Judge while scrutinising the genesis of Rule 10, Order 30 observed that this provision is introduced in C.P.C. on the analogy of the English Rule 11, Order 48-A which replaced the old Rule 7 oi Order 9. After a long discussion and considering various English authorities the learned Judge arrived at a conclusion that Rule 10 would be attracted only when the business is carried on by a single proprietor in his trading name. While laying down this law the learned Judge did take note of the observations of Fazl Ali J. in Alekh Chandra v. Krishna Chandra Gajapati Narayan Deo, AIR 1941 Pat 596 but he did. not agree with the view expressed by Fazl Ali J.
31. Mr. Pareekh appearing on behalf of the respondent on the other hand relied on the authorities of the Patna, Orissa and Kerala High Courts in Alekh Chandra v. Krishna Chandra Gajapati Narayan Deo, AIR 1941 Pat 596, Rameshwar Prasad Golwara v. Keshab Prasad Bhagat, AIR 1962 Pat 360, Harishanker Lath v. General Merchants Ltd., AIR 1956 Orissa 186 and Tulsidas Mulji v. Ebrahimjee. AIR 1960 Ker 75 and urged that the defendant Bhanwar Lal Bordia has deliberately withheld the information as to who were the proprietors of the concern known as M/s. General Auto Agencies. In his written statement he has given only this much information that this was a proprietary firm; the proprietor Shri Sobhagmal Lodha died long before the suit was instituted. He however did not disclose the name or names of the present proprietor or proprietors of the firm. He has however stated that he is the servant of the 'proprietor' which expression indicates that there are more than one proprietor of the firm M/s. General Auto Agencies who are carrying on their business in the assumed name. In his statement when he came in the witness-box, Shri Bordia stated that Sobhagmal Lodha had created a trust and the trustees are carrying on the business of this concern but he purposely did not give any detail about the names and the addresses of the trustees.
32. Trustees cannot call themselves to be the proprietors of the firm in the ordinary sense the expression proprietor connotes. Shri Bordia in his written statement has stated that he was a servant of the proprietors. This indicates that the business of this concern has gone to the hands of more than one proprietor; such proprietors could not be anybody else except heirs of Shri Sobhagmal Lodha. If that be so. then this business must be carried on by the heirs of Sobhagmal Lodha as joint Hindu family business inherited from their ancestor. It is in this light that I have to consider the contention of Mr. Bhandari and see whether if the business carried on by a joint Hindu family then could it be sued in its trade name under the provisions of Rule 10. Order 30.
33. Fazl Ali J. in AIR 1941 Pat 596 while considering the Madras authority AIR 1936 Mad 707 wherein it was held that Order 30, Rule 10 can apply only to the trade name where the business is carried on by single individual, Observed as follows:--
'With that view I agree subject to this qualification only that there is nothing to prevent this rule being applicable to those cases where more persons than one carry on 'business in an assumed name, though strictly speaking they are not partners. Such a case cannot arise in England, but in India the members of a joint family who do not form a contractual partnership in the strict sense of the term do often carry business in an assumed name.'
34. In Jamunadhar Poddar Firm v. Jamunaram Bhakat, AIR 1944 Cal 138 cited by Mr. Pareekh the court discussed the case law on the subject at length and observed as follows:--
'A business can be carried on either by one person, either in his own name or in an assumed name, or by a number of persons in association. In the last mentioned case the association of those persons would ordinarily in England be a partnership firm concern. There is no such concern in England, the like of which we have here in the case of a joint Hindu trading family, of a group of persons trading together but not constituting a firm. In view of that fact it would, in our judgment be not right to follow blindly the dicta of Judges of the English Courts where they say that Rule 11 of Order 48-A relates to the case of a single individual. On this point we fully endorse the view expressed by the Patna High Court in AIR 1941 Pat 596. Differing from the decisions of the Madras High Court in ILR (1937) Mad 28 = (AIR 1936 Mad 707), we agree with that decision of the Patna High Court. No convincing reasons have been given in the judgment of the Madras High Court. The contrast between the language of Rules 1 and 10 of Order 30 made therein does not carry the matter far, and we do not agree with the observations that here in India 'there is no reason to depart from the view taken in English cases' on the scope of that rule.'
35. The learned Judges in this connection further observed,
'Order 30, Rule 10 uses the words 'any person'. The singular number is there, but the word 'person' must be given the meaning assigned to it by Section 3 (39), General Clauses Act. Unless there is something repugnant in the context or in the subject, the term 'person' will include any association or body of individuals whether incorporated or not.' We do not find either anything in the context of subject which would lead to us to hold that Rule 10 contemplates the case of a single individual only, and not of many individuals. Of course, where more than one individual trade under a firm name or under any other assumed name and form a partnership resting on contract, the case would come under Rule 1 of Order 30, but where they do not form a partnership we do not see any convincing reason why they should not come within Rule 10.'
36. In Rameshwar Prasad Golwara v. Keshab Prasad Bhagat, AIR 1962 Pat 360 the learned Judge after discussing the scope of Rule 10, Order 30 laid down the law as follows :--
'It is to be noticed that Rule 1 essentially deals with a case of partnership which cannot be constituted by a single individual; there must be two or more persons to constitute a partnership. While, on the other hand, Rule 10 is wide enough to cover within its ambit a single person carrying on a business in a name or style other than his own name, two or more persons carrying on business in a name or style other than their own name either as a group of persons or as members of a joint Hindu family. There is nothing repugnant in the subject or context to exclude the application of the principles of law embodied in Section 13 of the General Clauses Act nor is there anything in my opinion, to enable me to hold that the definition of the word 'person' given in Section 3 (42) is not applicable to the same word used in Rule 10 of Order 30 of the Code.'
37. The Kerala High Court in Tulsidas Mulji v. Ebrahimjee, AIR 1960 Ker 75 after considering various authorities of different High Courts also laid down,
'There is nothing to prevent Rule 10 of Order 30 being applicable to those cases where more persons than one carry on business in an assumed name, though strictly speaking they are not partners. Such a case cannot arise in England, but in India the members of a joint family who do not form a contractual partnership in the strict sense of the term do often carry on business in an assumed name.'
38. After carefully considering the reasoning given by the Patna, Orissa and Kerala High Courts, I can, with great respect to the learned Judge of the Madras High Court say that the Madras view cannot be followed as the conditions in India are different from those of England where institution like joint Hindu family is unknown.
39. It was next contended by Mr. Bhandari that the suit should fail because it was (brought against the assumed trading name through Shri Bhanwar Lal Bordia who is merely an employee of the firm. It is true that the suit was brought through Shri Bhanwar Lal Bordia. But if the plaint is properly construed then there is no escape from this conclusion that the suit was brought against M/s. General Auto Agencies which is an assumed trading name of a concern carried on by the proprietors of the firm. The written statement has been filed on behalf of M/s. General Auto Agencies and the case has been fought tooth and nail to defend the rights of the defendant firm. In my opinion no prejudice has been caused to the defendant by simply adding the name of one of the employees who perhaps looks after the business of this concern. Even if the plaint did not mention the name of Shri Bhanwar Lal Bordia, the suit could be continued and, therefore, it is neither a case of misdescription or misjoinder of the parties within the meaning of Order 10, Rule 10. Learned counsel for the respondent cited Firm Vijay Nipani Tobacco House v. Sarwan Kumar, AIR 1974 Pat 117 to show that for such defect the suit cannot be thrown out as no prejudice has been caused to the defendant. In my opinion this objection that the suit is not maintainable because it has been filed against an assumed name of a concern, has no merits.
40. The result is that the appeal fails and it is hereby dismissed with costs.