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Ram Prosad Chimonlal Vs. Anundji and Co. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1922Cal408,69Ind.Cas.885
AppellantRam Prosad Chimonlal
RespondentAnundji and Co.
Cases ReferredHeinemann v. Bale
Excerpt:
civil procedure code (act v of 1908), order xxii, rule 9(2), order xxx, rule 10 - sole defendant sued in firm-name, death of--omission to bring legal representative on record within time, effect of--abatement, when cannot be set aside. - .....in a name or style other than his own name may be sued in such name or style as if it were a firm-name and, so far as the nature of the case will permit, all rules under this order shall apply.' a person sued by his trading name may be ordered to disclose his real name and private address (see r 1 ). now, for the purposes of the present application, i will assume that anundji was the sole proprietor of the firm of anundji & co. and indeed the application of the plaintiff-firm before mr. justice greaves was urged on the footing that anundji was the sole proprietor of anundji & co. it is settled law that the effect of the provisions with regard to suing partners in their firm name is merely to give a compendious mode of describing in the writ the partners who compose the firm and.....
Judgment:

Ghose, J.

1. This it an application on behalf of the infant defendant, Jogjiban Anundji, for an order that this sail, so far as the said defendant is concerned, may be dismissed with costs. It has arisen under the following circumstances : On the 7th February 1920, this suit was instituted under Order XXXVII, Civil Procedure Code, for the recovery of a sum of Rs, 1,005 alleged to be due to the plaintiff firm on a hundi drawn by one Meghji Bhimji and accepted by the defendant-firm of Messrs. Anundji & Co, of which, it is alleged, the sole proprietor was one Anundji, the father of the applicant. On the 20th February 1920, Anundji obtained leave to defend this suit. He died on the 9th June 1920, In February 1921, the plaintiff-firm made an application for an order that the plaintiff firm may have leave to continue this suit against Jogjiban and Govindji, both of them infants under the age of 18 years, sons and legal representative of Anundji deceased, the alleged sole partner of the defendant-firm, and that the abatement of this suit, if any, be set aside. This application was disposed of by my learned brother, Mr. Justice Greaves, on the 2nd March 1921 when he made the following order : It is ordered, without prejudice to the rights of Jogjiban and Govindji, the minor sons of Anundji, of the defendant-firm to contend, if they be so advised, that this suit in fact abated after six months from the 9th day of June last by reason of the death of the said' Anundji, that the said plaint and the register of this suit be amended by adding to the cause-title thereof the. names of Jogjiban and Gavindji as such sons, heirs, and legal representatives as parties defendants to this suit and by making such other amendments in the body of the said plaint as may be necessary in consequence of the aforesaid amendment. And it is further ordered that a fresh writ of summons to appear and answer do issue to the said Jogjiban and Govindji.'

2. Govindji has, since the date of the last mentioned order, died, and the fact of his death has been recorded in the proceedings herein, The present application is opposed on the ground that no steps were taken by the plaintiff-firm to record the death of Anundji and to bring his heirs on the record within the statutory period and that, therefore, this suit has abated. Order XXX of the Code of Civil Procedure deals with suits by or against firms and persons carrying on business in names other their own. Section 1 provides that arty two or more persons claiming or being liable as partners and carrying on business in British India may sue or be sued in the Dame of the firm. Section 10 lays down : * Any person carrying on business in a name or style other than his own name may be sued in such name or style as if it were a firm-name and, so far as the nature of the case will permit, all rules under this Order shall apply.' A person sued by his trading name may be ordered to disclose his real name and private address (see r 1 ). Now, for the purposes of the present application, I will assume that Anundji was the sole proprietor of the firm of Anundji & Co. And indeed the application of the plaintiff-firm before Mr. Justice Greaves was urged on the footing that Anundji was the sole proprietor of Anundji & Co. It is settled law that the effect of the provisions with regard to suing partners in their firm name is merely to give a compendious mode of describing in the writ the partners who compose the firm and that the plaintiff who sues partners in the Earns of their firm in truth sues them individually just as mush as if he had sat out all their names, see Western National Bank of New York v. Perez (1891) 1 Q.B. 304 : 60 L.J.Q.B. 272 : 64 L.T. 543 : 39 W.R. 245; Heinemann v. Bale (1891) 2 Q.B. 83 : 60 L.J.Q.B. 650, 64 L.T. 548 : 39 W.R. 485. The firm-name is a mere expression, not a legal entity, and for convenience it may be used for the sake of suing and being sued. The same considerations apply where the firm-name is used under Order XXX, Rule 10. Therefore, I must take it that in this case the person sued was Anundji, The sole defendant Anundji having died and his legal representative or representatives not having been brought on the record within the time limited by law, this suit abated, And, in my opinion, no sufficient reasons within the meaning of Order XXII, Rule 9, Sub-rule (2) were or have been shown for setting aside the abatement.

3. The result is that the application succeeds The applicant will get the costs.

4. Certified for Counsel.


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