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

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 1452 of 1952
Judge
Reported inAIR1957Cal688
ActsCode of Civil Procedure (CPC) , 1908 - Section 141 - Order 1, Rule 10 - Order 6, Rule 17 - Order 7, Rule 1 - Order 23, Rule 1 - Order 30, Rule 1; ;Limitation Act, 1908 - Section 22 and 22(1)
AppellantManilal and Sons
RespondentUmedbhai and Co.
Appellant AdvocateBijan Mitra, ;R.K. Ghosh and ;S. Talukdar, Advs.
Respondent AdvocateSaroj K. Dutt and ;S. Majumdar, Advs.
DispositionApplication dismissed
Cases ReferredB. Sarkar & Sons v. Powell
Excerpt:
- .....supreme court. the foundation of this provision is the well-settled notion in jurisprudence that a firm name is a mere compendious expression and not a legal entity or corporation and therefore, this permission to sue in the firm name as the plaintiff is the privilege which the statute has granted only in the case where the firm's partners carry on business in india.4. no real reason is given by the plaintiff toexplain the long delay of six years in making thisapplication for amendment. all that is said in thepetition is that on january 29, 1957, the applicant's solicitors received a letter from the defendants' solicitors saying that inasmuch the applicant was a firm carrying on business at singaporean objection would be taken on behalf of the defendant at the hearing of the suit that.....
Judgment:
ORDER

P.B. Mukharji, J.

1. This is a Chamber Summons taken out by the plaintiff Manilal fit Sons, a firm carrying on business at No. 11A, Malacca Street, Singapore for an amendment of the plaint. This Chamber Summons is dated January 31, 1957. The suit was instituted on or about March, 31, 1951. The application, therefore, is made after about six years. It is also made when the suit is on the peremptory daily list for disposal.

2. The nature of the amendment sought is to strike off the plaintiff firm altogether as the plaintiff and to introduce in its place the names of five partners, (1) Dayabhai Bikrambhai Patel, (2) Pravinbhai Dayabhai Patel, (3) Gangabeen Jshwar Bhai Patel. (4) Bachubhai Manibhai Amin and (5) Manibhai Maganbhai as carrying on business under the name of Manilal & Sons. The consequential amendments are also sought in the body of the plaint.

3. The reason for the amendment is that the plaintiff firm is admittedly a non-resident firm not carrying on business in India. Under Order 30, Rule 1 of the Code of Civil Procedure, it is provided

'Any two or more persons claiming or being liable as partners and carrying on business In India may sue or be sued in the name of the firm etc.......'

Unless, therefore, the partners are carrying on business in India, the firm as such cannot be a plaintiff. It is, therefore, clear that without an amendment, this suit must fail. This is a well-known provision in the Code which is taken from Order 48A, Rule 1 of the Rules of the English Supreme Court. The foundation of this provision is the well-settled notion in jurisprudence that a firm name is a mere compendious expression and not a legal entity or Corporation and therefore, this permission to sue in the firm name as the plaintiff is the privilege which the statute has granted only in the case where the firm's partners carry on business in India.

4. No real reason is given by the plaintiff toexplain the long delay of six years in making thisapplication for amendment. All that is said In thepetition is that on January 29, 1957, the applicant's solicitors received a letter from the defendants' solicitors saying that inasmuch the applicant was a firm carrying on business at Singaporean objection would be taken on behalf of the defendant at the hearing of the suit that the suitas framed was not maintainable. The applicants,therefore, submit in the petition that they wereadvised that the misdescription of the partners inthe cause title of the plaint being bona fide, theirnames should be brought on the record. Whethera suit by a non-resident firm not carrying on business in India is maintainable or not is a questionof law and cannot be made to depend on the information conveyed by the defendants' solicitorson January 29, 1957. The plaintiffs must see thata proper plaint is filed on their behalf and' it isnot for them to wait for the defendant to pointout the defect. The delay, therefore, on the partof the defendant in pointing out the defect in theplaint can be no justification for the plaintiff's default in filing an incompetent plaint and then innot having the necessary amendments made inproper time. It is no explanation in law and isno defence for the plaintiffs to say that it did notknow the law and waited to learn from the defendant. Ignorance of law is no excuse. It is said,that the specific point is not taken in the writtenstatement. I do not think it matters at all It al-'ways remains the obligation of the plaintiff tosee that a legally competent person sues on behalf of the plaintiff and a proper plaint is filedby a legally recognised plaintiff under the laws ofthis country. Ignorance of law being no excuse,the submission that such Ignorance is bona fidedoes not afford any more excuse either. Law isnotorious for its arrogance of assuming that it isknown to all. The reason for this piece of arrogance is sheer self-defence because otherwise everyone will be free to break it with the Plea of bonafide ignorance and the reign of law will be subverted. When there is a duty to know, ignoranceis never bona fide in law.

5. Mr. S.K. Dutt, learned Counsel appearing for the defendant firm has submitted, first, that the amendment is not permissible in law, secondly, that even if permissible, it should not be granted in the discretion of the Court because the claim today is barred by limitation and third, even the present application is not made by competent persons but by the non-resident firm which. is incompetent to apply.

6. On behalf of the applicant Mr. B.C. Mitra, learned counsel, has argued that this is a case ofmisnomer or misdescription, I am unable to accept his submission that it is either a misnomer or a misdescription. Manilal & Sons is a firm. That name is not a misnomer. It is a fact. It is not mis-description either. As a description it is correct: This is not a case of non-existent firm or a non-existent person or of a wrong description but of a legal bar. When a plaint is filed showing that the plaintiff is not a legally recognised Person at all, I consider such a plaint to be a nullity. Supposing today a plaint is filed describing the, public of India as a plaintiff; that will be a nullity of a plaint. The collectivity known as the public cannot be regarded in law as a plaintiff at all. Similarly, the collectivity known by the word 'firm' is not in jurisprudence a legal entity and there-lore, cannot file a plaint except in the manner and to the extent expressly permitted by the statute. The statute in this case is Order 30, Rule 1 which permits only such a collectivity to sue as a plaintiff provided the partners carry on business in India.

7. The Court's powers of amendment so far as the plaintiff is concerned are stated in Order 1, Rule 10 of the Code of Civil Procedure. It says:--

'Where a suit has been instituted in the name of a 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 the 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 fit.'

An analysis of this provision brings out clearly the main ideas. The Court's powers in such cases are (1) to substitute or (2) to add a plaintiff. This power depends on the existence of one of two conditions, namely, (1) when, a 'wrong' person sues as plaintiff or (2) when it is 'doubtful' whether the suit has been instituted in the name of the 'right' person. Neither of these two conditions is present in this case. No 'wrong' person is suing as plaintiff. 'Wrong' person is not a legally incompetent person and is not a person whom law does not recognise. 'Wrong' person here means not a legally 'wrong' person but, in fact, a wrong person. Nor is the other condition present here, namely, where it is 'doubtful' that a suit has been instituted in the name of the right plaintiff. It is not doubtful at all in this case that a firm not carrying on business in India cannot sue as a plaintiff firm. Far from being doubtful that law is clear, express and well-settled. I am, therefore, of the opinion that none of the two conditions stated in Order 1, Rule 10 of the Code of Civil Procedure is present in this case so as to enable the Court to add or substitute the names of five persons which this application seeks to do.

8. I am therefore, unable to subscribe to the wide proposition laid down by the Madras decision in Mura Mohldeen v. V Order A. Mohomed, : AIR1955Mad294 , where it says at p. 299:--

'If however imperfectly and incorrectly a party is designated in a plaint, the correction of the error is not the addition or substitution of a party but merely clarifies and makes apparent what was previously shrouded in obscurity by reason of the error or mistake. The question in such a case is one of intention of the party. If the. Court is able to discover the person or persons Intended to sue or be sued, a mere misdescription of such a party can always be corrected provided the mistake was bona fide: vide Order 1, Rule 10, C. P. C.-Such an amendment does not involve the addition of a party so as to attract Section 22(l) of the Limitation Act.'

9. With great respect I differ from that view, because I consider, the word 'however' in the above enunciation of the law disregards, the two specific conditions or occasions laid down in Order 1, Rule 10 of the Civil Procedure Code, one of which must in my view exist to enable the Court to substitute or add the plaintiff. I am unable to see how a plaint can be filed by a person who cannot legally be recognised as plaintiff, and substitution of some other persons in his place is not either a substitution or addition. It is not a mere clarification nor in my view making apparent) what was obviously shrouded in obscurity. Nothing was shrouded in obscurity because the law was very clear and plain. It is not in my judgment clarification but making a new plaint altogether, because the original plaint was no plaint in law and therefore the original plaint is a mere nullity of a process. The proper course when there is such a mistake is not to amend disregarding the conditions of Order'1, Rule 10 of the Civil Procedure Code but to seek Court's permission to withdraw the suit with liberty to file a fresh suit under Order 23, Rule 1 of the Civil Procedure Code on the ground of 'formal defect' and that naturally should be done before limitation.

10. In the Madras decision the plaint was not so radically and inherently bad as the plaint in this case, because there at least one partner sued in the name of the firm and that partner's name was already in the plaint. The English decision in Noble Lowndes and Partners (a Firm) v. Hadfields Ltd., 1939-1 Ch 569 (B), which is quoted and relied on in the Madras judgment emphasises this distinguishing fact. Farwell J. in that case said that it was not a case of substituting a living person for a non-existent entity and added: 'But I am being asked to strike out the names of all the plaintiffs except one and to leave that one as the sole plaintiff.' What happened in that English case was that in the plaint as originally filed the plaintiff was described as 'Noble Lowndes and Partners (a Firm)' and prayed for reliefs against the defendant by way, of damages. Before trial it was discovered that there was no such firm and therefore Lowndes made an application to be substituted as the sole plaintiff. Now Lowndes's name was already there in the plaint. The facts, therefore, both of the Madras case, as well as the English case on which the Madras decision was founded are distinguishable from the present case before me.

11. The Madras decision reviews all the more important cases existing on the subject so that it is no more necessary for me to notice individually each of the many decisions mentioned there. Mr. Dutt has criticised the correctness of the Madras decision in the light of a Bombay and a Calcutta decision to which I shall presently mate a brief reference. The contrary view was taken by Blackwell J. of the Bombay High Court in Vyankatesh Oil Mill Co. v. N.V. Velmahomed, AIR 1928 Bom 191 (C), followed by Buckland J. of the Calcutta High Court in Neogi Ghose and Co. v. Nebal Singh : AIR1931Cal770 .

12. Even assuming that the Court can still exercise its discretion to amend the plaint by striking off the plaintiff firm's name and Introducing the names of five different partners as plaintiffs the fatal objection to this application to limitation. Tills much is clear that the present plaint is not a legally competent plaint at all, endthe present plaint without the amendment mustfail. If the suit were dismissed today and a fresh suit were brought then such a fresh suit would be barred by limitation. A valuable right has thus accrued to the defendant. I am not concerned with the morality of the question. Limitation has nothing to do with morality. If the law gives an advantage to the defendant, the defendant is entitled to take that advantage and it is also the duty of the Court to see that he receives the benefit which the law gives him. .

13. Lord Buckmaster in Charan Das v. Amir Khan, 47 Ind App 255 at p. 262: (AIR 1921 PC 50 at p. 52) (E), said :

'That there was full power to make the amendment cannot be disputed, and though such a power should not as a rule be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases, (see for example Mohummud Zahoor Ali Khan v. Thakooranee Ratta Koer, 11 Moo Ind App 468 at P. 485 (PC) (F), where such considerations are outweighed by the special circumstances of the case.'

Now it is clear that as a rule the Court's power to allow amendment should not be exercised where its effect is to take away from the defendant a right which has accrued to him by lapse of time. That is the general rule. It is true that in special circumstances the Court can even override the question of limitation and grant the amendment, but as Lord Buckmaster put it there must be 'special circumstances'. Now what are the special circumstances? The only ground submitted is ignorance of law. I am unable for reasons I have already stated to accept ignorance of law as a 'special circumstance'. To override law on the plea of its Ignorance would be to make nonsense of all laws in the country. In fact there are no special circumstances at all in this case. This is also the view recently taken by the Court of Appeal here which is binding on me in the decision of H B. Sarkar & Sons v. Powell & Co., 60 Cal WN. 840: (AIR 1958 Cal 603) CG). The Supreme Court in some of its recent pronouncements on the subject had laid down that one of the principles which should guide amendment of pleadings is that thereby no injustice is caused to a party. To defeat the valuable right of a party acquired by reason of the operation of the law of limitation is, I conceive, injustice according to law which should be avoided by Courts as a general rule except in special circumstances.

14. Mr. Mitra tried to avail of Section 22 (1) of the Limitation Act by relying on the observations of Ra]a Gopala Ayangar J. in the Madras decision, : AIR1955Mad294 . The learned Judge observed at page 299 that 'such amendment does not involve the addition, of a party so as to attract Section 22 (1) of the Limitation Act'. I have already expressed my views why I consider this to be a case of substitution of new plaintiffs in place of an old one who is legally unrecognised. In my view the plaint in this case is no plaint at all. Amendment, therefore. In this case must be either by substitution or addition. Section 22 (1) of the Limitation Act provides:--

'Where after the institution of a suit a new plaintiff or defendant is substituted or added, the suit shall as regards him be deemed to have been instituted when he was so made a party.'

15. This is a case which I consider to be one of substituting entirely new plaintiffs. Thatprovision in the Limitation Act means that when a new plaintiff or defendant is substituted or added after the institution of a suit such substitution or addition will not have retrospective effect and he would be deemed to have been a party at the time when he was in fact made a party. Here the plaintiff is no plaintiff at all in law. To say in that context that there is some kind of a plaint or to say that the plaintiff is obscure will be in my view straining both the language and the law. I need only add that Section 22 CD of the Limitation Act does not at all say that even if the claim is barred by limitation the amendment should be al- lowed by substituting or adding new plaintiffs.

16. I am aware that it is a large claim in this suit amounting to Rs. 2,81,714/- which would be dismissed without trial if the amendment is not allowed. As I have already said, the Court will not be Justified in introducing ideas of morality and fairness while deciding a point of limitation. Law of limitation is not a law of fairness or morality, It is a law of convenience. It is a law of practical wisdom which wants litigants to be correct and diligent within time. If the plaintiff loses by reason of the amendment not being allowed it loses only because of its own fault and not by reason of anything which the defendant has done. In fact, I find that the plaint was signed and verified by the Constituted attorney of Marilal & Sons by the name of David Platt Dun-derdale who himself is a solicitor of this Court and the plaint was both drawn and settled by Counsel of experience. It is difficult in the context to assume ignorance of law. It might at best be described as a mistake of law. Mistake of law is not a special circumstance by which valuable I legal rights accruing to the defendant by lapse of time should be defeated. Suppose today a plaint is filed where the claim is barred by the law of limitation, could it then be said that the plaintiff made a mistake of law in respect of the particular article of the Limitation Act and therefore should be allowed to prosecute the claim? I think not,

17. Lastly, Mr. Dutt for the applicant has contended that there is no proper and competent application for amendment because the application again is made by the non-resident firm. The petition is made by Manilal & Sons, the' plaintiff firm, and it is verified by the same constituted attorney who verified the plaint. It is, therefore, contended by Mr. Dutt that the petition cannot be entertained because the applicant is not recognised by law. In fact, it is argued that there is no legal petition by a legally recognised person before the Court. His argument briefly is that it the plaintiff firm cannot sue as a firm, then it cannot apply in the suit as an applicant. I am inclined to accept that argument. Mr. Dutt tried to rely on Section 141 of the Code of Civil Procedure which enjoins that the procedure provided in the Code in regard to suits shall be followed as far as it can be made applicable in all proceedings in any Court of civil jurisdiction. I do not think that Section 141 of the Code of Civil Procedure actually applies to this case because of the Privy Council decision in Thakur Pershad v Fakirullah, 33 Ind App 44 (PC (H), which said' that this provision was only Intended to apply to proceedings which were original in their nature like Probate proceedings and would not include interlocutory proceedings. I do not think it is necessary here to invoke Section 141 of the C. P. C., in support of the in competency of the application. The point is that if the plaintiff could not sue as such, then it could not apply as such in the suit.

18. For these reasons the application must fail I, therefore, dismiss this application. I make no order as to costs in the circumstances.

19. The application is certified for Counsel.


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