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Manilal and Sons Vs. Purushottam Umedbhai and Co. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 108 of 1957
Judge
Reported inAIR1960Cal15
ActsCode of Civil Procedure (CPC) , 1908 - Sections 99 and 153 - Order 1, Rule 10 - Order 3, Rule 3 - Order 6, Rule 17 - Order 30, Rule 1; ;Limitation Act, 1908 - Section 22
AppellantManilal and Sons
RespondentPurushottam Umedbhai and Co.
Cases ReferredIn M. B. Sarkar and Sons v. Powell and Co.
Excerpt:
- das gupta, c.j.1. this appeal raises the question whether when a suit has been instituted in the name of a partnership firm carrying on business outside india as plaintiff, a procedure which is not permitted by order xxx, rule 1 of the c. p. c. under which only partnership firms carrying on business within india may institute suits in the firm name, the defect can be cured later on by substituting in place of the firm name, the name of the individuals, who are the partners of the firm, by way of amendment. the plaintiff's name as mentioned in the plaint in the present suit is : 'manilal and sons, a firm carrying on business at no. 11a malacca street, singapore'. it was subscribed in these words:'manilal and sonsby their constituted attorneyd. p. dunderdale'. the verification was also by.....
Judgment:

Das Gupta, C.J.

1. This appeal raises the question whether when a suit has been instituted in the name of a partnership firm carrying on business outside India as plaintiff, a procedure which is not permitted by Order XXX, Rule 1 of the C. P. C. under which only partnership firms carrying on business within India may institute suits in the firm name, the defect can be cured later on by substituting in place of the firm name, the name of the individuals, who are the partners of the firm, by way of amendment. The plaintiff's name as mentioned in the plaint in the present suit is : 'Manilal and Sons, a firm carrying on business at No. 11A Malacca Street, Singapore'. It was subscribed in these words:

'Manilal and Sons

by their constituted attorney

D. P. Dunderdale'.

The verification was also by the same gentlemen, D, P. Dunderdale, describing himself as constituted attorney of Manilal and Sons. This suit was instituted on 31-3-1951. Written statement was filed by the defendants, but no objection was taken therein to the defect indicated above namely, that though not permitted by the Code of Civil Procedure or any rules of the Original Side of this Court, the suit had been brought in the name of the partnership firm carrying on business outside India. The suit appeared in the Peremptory List of P. B. Mukharji, J., for the first time on 3-1-1957 and appeared therein for several days. On 20-1-1957, the defendant's Solicitor informed the plaintiff's Solicitors that as the plaintiff was a firm carrying on business at Singapore, an objection would be taken on behalf of the defendant at the hearing of the suit that the suit as framed was null and void and not maintainable. In view of this information and with a view to cure, if possible, the defect, as pointed out by the defendant's Solicitor, an application was made in the name, again of Manilal and Sons, the plaintiff, praying for substitution of the names of the individual partners of the firm in place of the firm name. It was averred that Dahyabhai Trikambhai Patel, Pravinbhai Dayabhai Patel, Gangaben Iswarbhai Patel, Bachubhai Manubhai Amin and Manubhai Maganbhai Amin bad at all material times been and were still the partners of the plaintiff firm; that the suit was intended to be instituted on their behalf, but that they had been collectively mentioned in the firm name and this being a mere misdescription, the plaint should be allowed to be amended by bringing on the record the names of the individual partners. If the amendment as prayed for be allowed, the plaintiff's name would appear thus: 'Dahyabhai Trikambhai Paid, Pravindbhai Dahyabhai Patel, Gangaben Iswarbhai Patel, Bachubhai Manibhai Amin and Manubhai Maganbhai Amin carrying on business under the name and style o Manilal and Sons, at No. 11A Malacca Street Singapore'. Consequential amendments in the body of the plaint by using the plural 'plaintiffs' instead of the singular were also prayed for. To these the defendant objected the main ground of the objection being that as the provisions of Order XXX, Rule 1. of the C. P. C. were not applicable to the case of a foreign firm, the effect or a suit being filed by a foreign firm in the firm name was that the suit was by an entity which had no existence in the eye of law. It was also urged that there was no proper application even now on behalf of the individual partners and so the application should not be allowed. It was further urged that, in any case, the application should not be allowed as the claims In the suit were now barred by limitation. It was further stated that Mr. Dunderdale who signed and verified the plaint as on behalf of Manilal and Sons bad not the proper authority to do so.

2. P. B. Mukharji, J., who heard the application, was of opinion that this was not a case of misdescription, but that the legal position was that the firm could not be legally recognised as a plaintiff and the plaint was a mere nullity of process, He also held that there was no scope of applying the provisions of Order I Rule 10 of the C. P. C. and that the only course open to the party was to ask for the Court's permission to withdraw the suit with liberty to file a fresh suit, But, as he himself recognised, this would have been of no use as a freshsuit would be barred by limitation. He was, however, of opinion that as this was not a case of misdescription, it must be held 'to be a case of substitution of new plaintiffs in place of an old one who is legally unrecognised', and to allow an amendment would be to deprive the defendants of the valuable right they have acquired, as the suit on such substitution would be barred by limitation. He further held that as the plaintiff could not sue in the firm name, the application for amendment in the firm name must also fail. On these conclusions, he dismissed the application, but made no order as to costs.

3. In appeal against this order of dismissal it is contended before us that the learned Judge was wrong in his view that the naming of the plaintiff as 'Manilal and Sons, a firm carrying on business at No. 11A Malacca Street, Singapore', was not a mere misdescription. The real question is whether the words 'Manilal and Sons', as used in the plaint in describing the plaintiff, describe however defectively or clumsily some real persons seeking the aid of the Court to obtain some relief or whether they describe some person or thing which does not exist in law. As I have already indicated, the argument which found favour with the Court below is that the words, being the name of a partnership firm, described something which is not a legal entity and which has no legal existence and in the absence of some special provision, as provided by Order XXX, Rule 1 of the Code of Civil Procedure in the case of partnership firms carrying on business in India, the firm name would really be the name of nothing existing. If this be the correct position, the necessary consequence is that the plaint has no legal existence. What does not exist in law cannot be amended. So if the position be, as alleged, that this is not a case of misdescription but description of a non-existent something, the prayer for amendment must be rejected, whether or not this prayer is made at a time when a suit brought in the name of the individual partners would have been within time or it would nave been beyond the time prescribed by the law of limitation. I should myself think that if that is the position, there would not even arise the question or withdrawal of the suit, because as recognised by the learned Judge himself, the plaint would be a nullity.

4. If, however as was pressed on behalf of the applicants, the words 'Manilal and Sons' do describe the several individual partners of the firm in Singapore carrying on business under the name and style of 'Manilal and Sons', it will be correct to say that as such a description has not the special protection of the provisions of Order XXX, Rule 1, it is a defective description. Such misdescription can certainly be corrected in law and ordinarily, in the absence of special circumstances, such prayer for amendment should be allowed.

5. Treating the question as one free from authority and to be decided on principle, I am clearly of opinion that the words 'Manilal and Sons' as used in the plaint do describe really existing persons. Whether in Courts of law or outside, it is well-known and well recognised that the firm name is short for the names of several individuals who are the partners of the firm aS has been said again and again, the firm name is a compendious mode of describing all the partners of a firm. The Court whose aid is sought and the defendant against whom the aid is sought know equally well that the name 'Manilal and Sons' is intended to describe some persons who really exist It is interesting in this connection to refer to the written statement of the defendant which was filed on 21-5-1951. The very opening words of the written statement are that 'on or about19-9-1949 it was agreed in writing between the plaintiff and the defendant as under'; then follow words which need not be set out. In paragraphs 3. 4, 5, 9, 10 and 11 there is repeated use of the word 'plaintiff', attributing to the plaintiff various conducts and statements. The defendant does not appear to have been in any doubt at any time about the real existence of the plaintiff and it was nowhere suggested that the plaintiff had no existence in law.

6. But, argues the defendant, it is well-known that a partnership firm as opposed to a corporation is no legal entity. In other words, it is urged, it has no legal existence and if it has no legal existence, the name of the firm has no more effect than the name of a non-existing person or a dead person would have.

7. In my opinion, there is no substance in this contention. It is certainly a correct proposition of law that partnership firm is not a legal entity in the sense a corporation or an incorporated body is a legal entity. To say this is, however, not to say that a firm does not exist in law. A firm has a very real existence in the combination of two or more individuals in partnership. To say that the firm name does not describe any existing person is, therefore, unrealistic and incorrect.

8. This was pointed out in forceful language by Das, J. (now Chief Justice of India) in Munshilal and Sons v. Modi Bros., 51 Cal WN 563. At p. 567 we find the following observations:

'It is said that a firm is not a legal entity. What is the implication of this proposition? It is well known that there is a difference in the notions of commercial men and lawyers respecting the nature of a firm. Commercial men look upon a firm in the light in which lawyers look upon a Corporation, that is to say, as a body distinct from the members composing it and having rights and obligations distinct from those of its members. That, however, is not the legal notion of a firm. The firm is not recognised by English lawyers as distinct from its members'.

Then follows the significant passage:

'It is to bring out and emphasise this legal notion of a firm that it is said that a firm is not a legal entity. This does not mean that the law does not recognise a firm for any purpose. It does not mean that a firm name has, in the eye of law, no meaning or content. The firm name is a compendious mode of describing the partners'.

I have, therefore, come to the conclusion that treating the question as one of first principles, it should be answered by saying that the name 'Manilal and Sons' as used and described in the plaint in the suit was a defective mode of describing the five individual partners of the firm and that this is a case of mere misdescription.

9. P. B. Mukharji, J. is of opinion that the only provision in law under which the amendment prayed for could be granted was under Order 1, Rule 10 of the Code of Civil Procedure, but he points out that those provisions do not apply. Order 1, Rule 10 of the Code of Civil Procedure, which corresponds to the provisions of Order 16, Rule 2 of the Rules of the Supreme Court in England, provides that

'where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of tie real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just'.

P. B. Mukharji, J., points out -- and in my opinion rightly--that before the provisions of this rule can be applied, it must either be shown that a wrong person has sued as a plaintiff or it is doubtful whether the suit has been instituted in the name of the right person and this is not a case of a wrong person suing. He points out also that there is no case of any doubt here whether a firm not carrying on business in India can sue as a plaintiff firm. The provisions of Order 1, Rule 10 are, in his opinion, accordingly not applicable.

10. Even though I am unable to agree with the learned Judge with his view that the firm name describes a legally non-existent person, I am inclined to agree with him that where a firm name has been used to describe the plaintiff, it is not strictly possible to say that the suit has been instituted in the name of the wrong person, or, again, that it is doubtful if it has been substituted in the name of the right person, what is asked for is the substitution of the names of the individual partners in place of the firm name, it is not a case of 'any other person to be substituted or added as plaintiff.'

11. If therefore, there was no provision in law apart from Order I, Rule 10 of the Code of Civil Procedure, as P. B. Mukharji, J., seems to think, under which the amendment could be asked for the plaintiff's prayer must fail. Clearly, however, there are at least two provisions in the Code of Civil Procedure under which in such a case of misdescription the defect can be removed by the Court. Section' 153 of the Code provides that

'the Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments snail be made for the purpose of determining the real question or issue raised by or depending on such proceeding.'

Order VI, Rule 17 of the Code provides that

'the Court may at any Stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties.'

In my judgment where the name of the plaintiff or the defendant has been misdescribed, it is necessary for the purpose of determining the real question between the parties that such amendment should ordinarily be allowed.

12. The question whether the use of the name of the firm or a business in describing the plaintiff or defendant, even where this is not permitted by the provisions of Order XXX of the Code of Civil Procedure, is a misdescription or amounts to description of something non-existent in law has engaged the attention of Courts in India and in England on many occasions. In our own country one of the earliest cases appear to be the derision of Blackwell, J., in Vyankatesh Oil Mill Co. v. N. V. Velmahomed, AIR 1928 Bom 191. The suit was brought in the name of Vyankatesh Oil Mill Co., a firm carrying on business at Sangli in the State of Sangli. The plaint ended with the words:

'The Vyankatesh Oil Mill Company by Narayandas Sarvoitamdas Partner'.

A preliminary issue was framed:

'Whether the plaintiffs were entitled to sue in the name of their firm? If not whether the suit is maintainable.'

Blackwell, J., was of opinion that the suit had been brought by an entity which had no legal existence in the eye of Indian Law and there being no mode of procedure where such an entity is permitted to sue in India, the suit as framed was not maintainable at all, because it was brought by an entity whichhad no legal existence. He referred to the old case of Kasturchand Bahiravclas v. Sagarmal Shriram, ILR 17 Bom, 413, where an objection by a defendant -- when a suit had been brought to recover a debt by the plaintiff described as the firm of 'Kondanmal Sagarmal by its manager Sagarmal Shriram' and one person was added as a co-plaintiff after the period of limitation -- that the whole suit was time-barret was rejected in the view that the case was one of misdescription and not of non-joinder. He however, was of opinion that the introduction of Order XXX of the Code of Civil Procedure materially altered the position; and that after the provision therein, under which certain specified firms, namely firms carrying on business in India, can bring suits in the turn name, the position is that other firms or a sole proprietor or Hindu joint family business, not entitled to the benefit of Order XXX, Rule 1, are legally non-existent for the purpose of describing the plaintiff.

13. It is interesting to mention that in this particular case Blackwell, J., did allow an amendment on terms, but treated it as an amendment not following upon a misdescription, but on application for the substitution as plaintiffs of individual persons for a legally non-existent person. As already indicated, my own view is that it the correct position is that the plaint is brought by legally non-existent person, the plaint is a nullity and there should be no question of amendment at all. For myself I am unable to see how the introduction of Order XXX, Rule 1, can change the legal position. Before that Order, which permitted certain firms to bring a suit in the firm name, all firms, whether carrying on business in India or otherwise, were in the same position. That position was that the firm name was a compendious made of describing all the partners, but such a description of the plaintiff in that name would be a defective description which could be corrected. When the position was altered as regards firms carrying on business in India by the provision of Order XXX, Rule 1, all that happened was that such a description would not be a defective description in the case of such firms, but would continue to be a defective description in the case of other firms. That could not, in my opinion, change the position that it did describe something really existing, though defectively.

14. In this Court Buckland, J., followed the decision of Vyankatesh Oil Mills Co., AIR 1928 Bom 391, in Neogi Ghose and Co. v. Sardar Nehal Singh : AIR1931Cal770 . He did not add any reasons of his own. but said that he entirely agreed with the view of Blackwell, J., that the suit was badly framed from the outset and that the plaintiffs were an entity not recognised by law. He also, it is worth noting, allowed the amendment, treating it as an amendment not following upon a mere misdescription, but as an application for substitution as plaintiffs of individual persons who composed the entity which the law did not recognise.

15. In Amrik Singh v. Sant Singh, AIR 1936 Lah 485, the Lahore High Court had to consider an argument that four partnership firms named as defendants really amounted to a misdescription of individual partners. The Court rejected the argument and mentioned as one of its grounds that the firms never carried on business in British India. Another reason that was given in that case was that the facts of that particular case were that the firms had been dissolved before the suit had been brought. So it was held that this was not a case where any defendants had been named. It appears to me that this additional circumstance that the firms had already been dissolved would be sufficient basis for the actual decision in that case.

16. Vyankatesh Oil Mill Co.'s case AIR 1928 Bom 191 and Neogi Ghose and Co.'s case : AIR1931Cal770 were followed by the Sind Chief Court in Mangharam Rupchand, Firm v. Haji Sorik Punhoo, AIR 1939 Sind 172.

17. A different note was struck by Page, J., in the early case of Sheodoyal Khemka v. Johurmull Manmull : AIR1924Cal74 . Defendant No. 1 as described in the plaint was Joharmull Manmull, mentioned as a firm. Objection was taken that there was no such firm as Joharmull Manmull and the suit had been wrongly constituted, because two members of the partnership firm Nathuram Ramkrissen, namely, Joharmull Khemka and Manmull Khemka were not parties to the suit. Page, J., agreed that Joharmull Manmull did not constitute a partnership firm, but that they were individual members of the partnership, Nathuram Ramkissen, He was, however, of opinion that when the plaint described defendant No. 1 as Joharmull Manmull, it was a sufficient description of two defendants, Joharmull Khemka and Manmull Khemka. He did not think any amendment substituting in place of Joharmull Manmull the names of these two persons, Joharmull Khemka and Manmull Khemka, was necessary, but stated that

'if an application were made to amend the plaint so as to substitute for Joharmull and Manmull the words Joharmull Khemka and Manmull Khemka', such an amendment would not be an amendment by which a new party was added, but it would be an amendment merely for the purpose of more clearly describing parties who are already before the Court.'

In Amulakchand v. Babulal, AIR 1933 Bom 304, Beaumont C. J. and Rangnekar J. refused to follow the Vyakantesh Oil Mills case, AIR 1928 Born 191 and gave leave to amend the plaint, by substituting in place of 'Amulakchand Mewaram, a firm of merchants carrying on business at ......-' the namesof the three members of the joint family, where business was carried on in that name. Beaumont C. J. pointed out that this was a case of misdescription of existing persons.

18. The Madras High Court had to consider this question in a very recent decision in Mohideen v. V.O.A. Mohomed, (S) : AIR1955Mad294 . The suit had been instituted for the recovery of a sum of money by the plaintiffs describing themselves as 'V. O. A, Alliar and Sons through one of the partners V. O. A. Mohamed.' On the 5th September, 1945, when a fresh suit for this relief would have been barred by limitation, an application was made to amend the plaint by the substitution of the names of three partners of the firm 'V. O. A. Alliar and Sons' in place and stead of the name of the firm. The application was allowed and the plaint was amended and a decree followed. In the appeal before the High Court the question was raised that the suit was barred by limitation as the plaintiff in the suit as originally instituted was a non-existing person and the plaint became effective only when the three partners were brought on the record as plaintiffs in December, 1945. After an exhaustive consideration of the many cases in which the question had been considered, the learned Judges of the Madras High Court recorded their conclusion in these words:

'To sum up, the situation Is analogous to a case where an individual who has an alias or an abbreviated name by which he is sometimes called initially describes himself in that name but subsequently applies to have it rectified so as to describe in the manner in which he is most usually known. There cannot be any doubt that by the correction in the name a new plaintiff is not added so as to attract Section 22(1), Limitation Act. A trade name either of a person or a group of individuals carrying onbusiness in partnership is in truth, an alias for the person or the group.'

The Court accordingly rejected the objection on the ground of limitation.

19. In several cases, of which I think it is sufficient to mention three only, the Courts in England had to consider the question now before us, namely, whether the description of a plaintiff Or a defendant firm, when this is not provided for in the Rules, is a mere misdescription which can be corrected by substitution of the individual members of the firm or the name of the proprietor of the business or is analogous to a case where the plaintiff or the defendant is a non-existent person. In Alexander Mountain and Co. v. Rumere, Ltd., (1948) 2 K.B. 436 the name of the plaintiff appeared originally in the writ as 'Alexander Mountain and CO. (suing as a firm)'. Alexander Mountain had died before the date on which the writ was issued and at the relevant time his widow, Doris Mountain, was carrying on the business in the name of Alexander Mountain and Co, This was not permitted by the provisions of Order 48(a), Rule I of the Supreme Court Rules, as that rule does not allow a single person to sue in the name of a firm. An application was made for amendment of the writ by substituting tot the description of the plaintiffs, as originally appearing, the words 'Doris Mountain, executrix of Alexander Mountain deceased.' The application was rejected by Lord Goddard C. J., he being of opinion, that he had no jurisdiction to make the amendments this was analogous to a case where an action had been commenced in the name of a dead man. On appeal the Court of Appeal unanimously held that the amendment should be allowed and that the case was one of mere misnomer. It was pointed out that since Section 11 of the Civil Procedure Act, 1833, abolished pleas in abatement for misnomer, it gave the defendant the right, instead of pleading in abatement, 'to cause the declaration to be amended at the cost of the plaintiff, by inserting the right name upon a judges summons founded on an affidavit of the right name.' That Act had also been repealed, but under the provisions of Order 72, Rule 2, the old practice would remain in force and the defendant by summons, supported by affidavit, could compel the plaintiff to amend. In these circumstances, the learned Judges thought that when the plaintiff asked for the amendment, the case should be treated as one of misnomer and the plaintiff should be allowed on terms to make the amendment.

20. In Belgian Economic Mission v. A. P. and E. Singler, Ltd., 1950 WN 418, the suit was originally brought in the name of 'Belgian Economic Mission', described as plaintiff. An amendment was asked for by substituting as plaintiffs 'Paul Van Zeeland in his capacity as Ministre' des Affaires Etrangeres et du Commerce Exterieur suing on behalf of the Kingdom of Belgium.' The question arose whether such an amendment could be allowed. There could be no difficulty if this was a mere case of misnomer, for the correct description could he allowed to be made under the provisions of Order 72, Rule 2. The amendment was allowed by Devlin, J., and on appeal that decision was affirmed by the Appeal Court, who held that the Belgian Economic Mission were merely the agents through which the Belgian State was making the contract and that the signatories were signing on behalf of the Belgian State and, consequently, there could not be any doubt that when they issued the writ the plaintiffs' solicitors thought that they were issuing it on behalf of the Belgian State. Accordingly, they held that this was a case of a misnomer and, as Cohen, L. J., pointed out, under the existing practicebecause of Order 72, Rule 2 there was power to allow in a proper case an amendment by substituting the correct description of the plaintiff.

21. The last case that requires to be noticed is Etablissement Baudelot v. R. S. Graham and Co. Ltd. (1933) 2 Q. B. 271. In the writ as originally issued the plaintiffs were described as 'Etablissement Baudeiot', and at the end of the back of the writ there was an endorsement that the writ was being issued by the solicitors for the plaintiffs a company incorporated according to the laws of France. The actual position was that it was not an incorporated body The defendants contended at the outset of the trial that the name of plaintiffs on the writ and all subsequent proceedings should be struck out and the action dismissed on the ground that the plaintiff was a non-existent person being described as a body corporate- Sellers, J., however, allowed the amendment of the plaint as prayed for by the plaintiffs by adding to the name 'Etablissement Baudelot' the names of the three persons who were carrying on this trading concern. On appeal, all the Judges agreed with the view taken by Sellers, J. All the Judges were of opinion that this was a mere case of misdescription which could be corrected and was not a case of a writ having been issued in the name of a non-existent person or body. It may be noticed here that while Birket, L. J., said that the provisions of R. S. C., Order 72, Rule 2 were quite sufficient to enable the Court to deal with such a situation, Singleton L. J., who also referred to Order 72, Rule 2, stated that the amendment could be allowed under the provisions of Order 16, Rule 2 of these Rules. As already stated, Order 16, Rule 2 of the Rules of the Supreme Court corresponds to Order I, Rule 10, of our Civil Procedure Code.

22. A consideration of these authorities fortifies me in my view that the description of a plain-tiff by a firm name in a case where the Code of Civil Procedure does not permit a suit to be brought in the firm name should properly be considered a case of description of the individual partners of the business and, as such, a misdescription, which in law can be corrected and should not be considered to amount to a description of a non-existent person.

23. Once this conclusion is reached, the objection on the ground of limitation disappears. As I, have already stated, though, I am inclined to agree with P. B. Mukharji J., that the words of O. I, R. 10 of the Code of Civil Procedure are not wide enough to provide for an amendment of this nature, Section 153 and Order VI, R. 17 of the same Code give ample power to the Court to allow such amendment by substituting the names of the individual members in the plaint.

24. It does not appear that the objection that has been taken in the affidavit-in-opposition as regards the insufficiency of the power of attorney in favour of Mr. Dunderdale was pressed before the learned Judge.

25. Mr. Dutt, however, drew our attention to the copy of the power of attorney as appearing in the paper book and wanted to convince us that this power of attorney did not authorise Mr. Dunderdale to act on behalf of the plaintiff firm, far less the individual members of the firm. Reading the document as a whole, I am of opinion that this contention should not succeed and that it does authorise Mr. Dunderdale to

'appear for and represent the firm in any Court in the jurisdiction Civil Criminal Insolvency Original Appellate or otherwise and before any Official in any suits proceedings or matters and to make sign verify present and file any Plaints, Statements, Applications, Petitions' etc.

26. There is, therefore, no substance in the objection that there was not a proper power of attorney in favour of Mr. Dunderdale.

27. As I have already stated, the application itself has been made in the name of Manilal and Sons and not in the name of individual partners. The learned Judge being of the view that such a plaint was legally a nullity, thought that such an application could not also be made. For the reasons I have already given, I am of opinion that such a plaint should be considered to be in effect brought in the name of the individual partners. I do not think the fact that the application has been made in the name of Manilal and Sons, is a ground for which the prayer for amendment should not be granted.

28. One matter which was not raised in the affidavit of objection, but was considered by us, was the question of the warrant of attorney. It appeared to us desirable that when the individual partners wished to be brought on the record as the real plaintiffs, the warrant of attorney should also be on their behalf as individual partners. It may be mentioned that two warrants of attorney, one executed by four of the individual partners and the other by the fifth partner, have been filed in Court. It may be pointed out that on the authority of the decision of a Full Bench of the Allahabad High Court in Wali Muhammad Khan v. Ishaq Ali Khan, I. L. R. 54 All 57: (AIR 1931 All 507), the defect, in the absence of a warrant of attorney having been filed earlier, should be considered a mere irregularity which can be cured. The filing of the fresh warrants of attorney executed by five partners have, in my opinion, cured the defect.

29. It appears that after the application for amendment was rejected, the learned Judge made an order dismissing the suit. Against that decision Appeal No. 138 of 1957 was preferred. That appeal has been heard and disposed of by us this day. We have allowed the appeal and set aside the order of dismissal.

30. For the reasons already mentioned, I would allow this appeal, set aside the order of the learned Judge and make an order for amendment as prayed for.

31. In view, however of the fact that the partners of the firm and their advisers have been guilty of gross negligence, I think it proper that the appellants should pay to the respondents all the costs up to date, including the costs of the application and of the hearing of the suit as also the costs in this Court'.

32. It is further proper that the order for amendment should be made conditional on the payment of a portion of these costs as indicated below:

I would, therefore, order that the order be made in terms of prayers (1) and (2) in the Master's Summons, dated 31st January, 1957, on condition that a sum of Rs. 5,000/- he paid by the appellants to the respondent's Solicitor on account of costs up to date both in the trial Court and this Court.

33-34. The individual partners are also permitted to sign the plaint either themselves or through their constituted attorney.

35. The payment of the sum of Rs. 500/- as mentioned above would be subject to mulual undertaking as to taxation and refund.

36. In default of the payment of this sum of Rs 5000/- by the 5th of January, 1959, this appeal will stand dismissed with costs.

37. Certified for two Counsel.

Bachawat, J.

38. The suit was instituted in the name of Manilal and Sons, a firm carrying on business In Singapore. The firm name of Manilal and Sons is the collective trade name of the several individuals carrying on business in co-partnership under that name. Those individuals trade and enter into contracts and dealings in the firm name of Manilal and Sons. But it so happens that a firm is not a separate juristic entity and Order XXX of the Code of Civil Procedure does not enable the partners of Manilal and Sons to sue in the firm name as [he firm carries on business outside India. There is, however no doubt that the suit was instituted by and on behalf of several persons who then constituted the firm of Manilal and Sons.

39. Ordinarily, a person must sue or be sued in his name. Order VII Rule 1 of the Code of Civil Procedure enjoins that the plaint shall contain the name and description of the plaintiff as also the name and description of the defendants so far as they can be ascertained. In certain cases Order XXX of the Code of Civil Procedure permits a suit by or against a person or persons in a name or style other than his or their own name or names. Suppose a suit is instituted by a single individual or by or against members' of a Hindu joint family or the partners of a firm carrying on business Outside India, Order XXX of the Code of Civil Procedure does not enable the institution of such a suit, but that Order in no way fetters the court's power of amendment. Unless amendment is allowed, such a suit is, however, bound to fail. The court has power to treat the name so used as a misdescription or misnomer of the real party who has sued or is being sued and to regard the use of the name as an error or defect in the proceedings. Whether or not, there is misdescription or misnomer is a question of fact. The court must be satisfied that the name on the record was, in fact, used for the purpose of impleading the party whose correct name is later sought to be substituted. On being so satisfied, the court has ample power to allow the error or defect to be cured under Section 153 of the C. P. C. and to allow consequential amendment of the pleadings under Order VI Rule 17 of the C. P. C. Whether the power should be exercised in a given case depends upon the facts of that case. Where the court regards the name on the record as a misdescription, the court, in effect, finds that the person who is so misdescribed is already on the record. If on such a finding the court allows the amendment by introducing the legitimate name of that person, the court is not adding a new party for the purposes of Section 22 of the Indian Limitation Act nor is it taking away from the defendant any defence accrued by lapse of time.

40. This power of amendment is in no way taken away by the fact that the name on the record is not the name of any individual or any separate juristic entity known to law. Because the name on the record is not the name of any known legal entity or because the name is a trade name in which the party is not entitled to sue, it does not follow that thesuit is on behalf of a non-existing or fictitious person. Such a name, on the facts of the case, may well bea misdescription of some real party who is suing or being sued,

41. In (1953) 2 Q. B. 271 Establissement Baudelot suing as plaintiff and described on the back of the writ as a company incorporated according to the laws of France was not, in fact, an incorporated company but was the collective trade name of three individuals trading in France. In 1950 W. N. 418 the Belgian Economic Mission suing as plaintiff didnot exist either as a corporation or as a firm and was the name of the agency for the real plaintiff the Belgian State. In AIR 1933 Bom 304 AmulakchandMewaram suing as plaintiff was the name of the business of a Hindu joint family which is not a known legal entity and a suit in that name was not authorised by the Code. Yet, all these cases were treated as cases of misdescription or misnomer and amendments were allowed in the interests of justice by adding the name of the real party.

42. Where however a plaint is presented in the name of a dead person in the mistaken belief that he is alive, so that the dead person is intended to be the plaintiff, it has been held that there can be no amendment of the pleadings nor addition of parties for there is no suit in the eye of law in which such proceedings may be had. It was so held in the case of Tetlow v. Orela Ltd. (1920) 2 Ch. 24. This case is to be contrasted with the case of (1948) 2 KB 436 where the name Alexander Mountain and Co., a firm, was treated as a misdescription of the person entitled to the business of Alexandar Mountain and Co. and therefore, a misnomer of Doris Mountain, Executrix of Alexander Mountain, who carried on business in that name on the date of the issue of the writ, though the Solicitors issuing the writ were under the impression that she and another person carried on business as co-partners under that name and though the suit was in respect of a matter arising during the lifetime of Alexander Mountain who also carried on business under the name of Alexander Mountain and Co.

43. The substitution of the name of the real party does not amount to an addition of a new party for the purposes of limitation. (Sec the case of (S) : AIR1955Mad294 and the case of Municipal Commissioners of D'acca v. Gangamani Choudhurani 0049/1939 : AIR1940Cal153 . In the later case Rau J., notices a long line of cases both of this Court and of other courts on this question.

44. In : AIR1924Cal74 , the Court even without any amendment of the pleadings treated a suit against Joharmull Manmull, a firm, as a suit against the individuals Joharmull and Manmull though there was no firm of the name of Joharmull Manmull in existence.

45. In each case the question is who is the real party suing or being sued. In M. B. Sarkar and Sons v. Powell and Co., 60 Cal WN 840: : AIR1956Cal630 the Court refused to treat the name of M. B. Sarkar and Sons a firm, as a misdescription of M. B. Sarkar and Sons, a company incorporated under the Indian Companies Act, on the finding that on the facts of that case and in view of the allegation made in the plaint, it was not open to the plaintiff to contend that it intended to implead anybody other than the firm of M. B. Sarkar and Sons.

46. In the case of AIR 1928 Bom 191 and in the case, of : AIR1931Cal770 the court look a harsh view of the matter in not treating the cases before them as cases of misdescription and in my opinion these cases ought not to be followed,

47. The principle upon which amendment should be granted or refused in such cases is well stated by Beaumont C. T. in the case of AIR 1933 Born 304 with whose judgment I respectfully agree.

48. The Courts in (1948) 2 KB 436 and fn 1950 WN 418 and Birkett L. J. in (1953) 2 QB 271, thought that the power of amendment in such cases is derived from the old power of the Court to correct a misnomer existing in 1883 and preserved by Order 72. Rule 2 of the Rules of the Supreme Court; whereas Singleton L. J. in (1953) 2 OB 271 and Rajagopala Ayyangar, J. in (S) : AIR1955Mad294 thought that the Court had power to make the amendment under R. S. C. Order 16, R. 2 and the corresponding Order I, Rule 10 of the Code of Civil Procedure. I prefer to rest this power of the Court upon the general power to amend contained in Section 153of the Code of Civil Procedure and the power to amend the pleadings contained in Order VI, Rule 17 of the Code of Civil Procedure.

49. My conclusion in this case is that the name of Manilal and Sons is a misdescription of the several persons who constituted the firm of Manilal and Sons on the date when the suit was instituted. Those partners could not sue in the name of Manila] and Sons. There is an error or defect in the proceedings. The Court has power to allow amendment of the defect and of the pleadings. On the facts of this case the amendment should be allowed. His Lordship, P. B. Mukharji. J., thought that, in the circumstances of this case, he had no power at all to allow the amendment. He, therefore, did not at all consider the question whether assuming that he had the power, the facts of the case warranted the exercise of such power.

50. The use of the name of Manilal and Sons in the ancillary proceedings and in the present application may also be treated as an irregularity and a case of misdescription and I so treat it.

51. The case of ILR 54 All 57: (AIR 1931 All 507) (FB) shows that the misdescription of the plaintiff and any consequent defects in the signature, verification and presentation of the plaint may be treated as technical defects or irregularities of procedure and I so treat such defects, if any, in this case.

52. In the circumstances of this case, I concur in the order proposed by my Lord.


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