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SUPREME COURT OF INDIA
S.J. IMAM, A.K. SARKAR AND RAGHUBAR DAYAL, JJ.
Purushottam Umedbhai and Co., and Appellants
Versus
M/s. Manilal and Sons, Respondents.
Civil Appeals Nos. 178 and 179 of 1960.
7th October, 1960.
Advocates Appeared
Mr. B. R. L. Iyengar, Advocate, for Appellants; Mr. N. C. Chatterjee, Senior Advocate, (Mr. D. N. Mukherjee, Advocate, with him), for Respondents.
-Where a suit has been instituted in the name of a wrong person or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may, where (i) the suit has been instituted through a bona fide mistake, and (ii) it is necessary for the determination of the real matter in dispute to do so, order any other person to be substituted or added as plaintiff in the suit. Both the conditions must be satisfied
-see decisions in Purushottam & Co. v. Manilal, AIR 1961 SC 325; Venkata Mallaya v. T. Ramaswami & Co., AIR 1964 SC 818. Such misdescription of parties may be corrected by an application at any time and the question of limitation would not arise in such cases.
-where the power-of-attorney gives complete power to commence and prosecute and defend all actions, claims, demands etc. it includes power to move execution applications and to file an appeal
-in a suit by a firm, a person holding power of attorney in his favour executed by a manager of the firm is competent to verify the plaint
-is merely a defect of procedure, a mere irregularity curable under Section 99 of the Code and the pleadings cannot be held to be a nullity. The proper procedure is to direct the party to verify the pleading as the case may be - Purushottam Umedbhai & Co. v. Manilal & Sons, AIR 1961 SC 325; Bhikaji Keshoo v. Brij Lal, AIR 1955 SC 610.
-the introduction of this provision in the Code was an enabling one which permitted partners constituting a firm to sue or be said. This enabling provision, however, accorded no such facility or privilege to partners constituting a firm doing business outside India. The existence of the provisions of Order XXX in the Code does not mean that a plaint filed in the name of a firm doing business outside India is not a suit in fact by the partners of that firm individually. Rule 1 is a general provision. Provisions of Rules 1 and 2 are enabling provisions to permit several persons who are doing business as partners to sue or be sued in the name of the firm - Purushottam Umendbhai and Co. v. M/s. Manilal and Sons, AIR 1961 SC 325. As held in Gambhir Mal Pandiya v. J.K. Jute Mills Co. Ltd., AIR 1963 SC 243, Order XXX permits suits to be brought against firms. The summons may be issued against the firm or against persons who are alleged to be partners individually. The suit, however, proceeds against the firm. Any person who is summoned can appear, and prove that he is not a partner and never was; but if raises that defence, he cannot defend the firm. Persons who admit that they are partners may defend the firm, take as many pleas as they like but not enter upon issues between themselves when the decree is passed, it is against the firm. Such a decree is capable of being executed against the property of the partnership and also against two classes of persons individually, they are (1) persons who appeared in answer to summons served on them as partners and either admitted that they are partners or were found to be so and (2) persons who were summoned but stayed away. The decree can also be executed against persons who were not summoned in the suit as partners, but Rule 50 of Order 21 gives them an opportunity of showing cause and the plaintiff must prove their liability.
-the existence of the provisions of Order XXX in the Code does not mean that a plaint filed in the name of a firm doing business outside India is not a suit in fact by the partners of that firm individually. If, under some misapprehension, persons doing business as partners outside India do file a plaint in the name of the firm they are misdescribing themselves, as the suit instituted is by them, they being known collectively as a Firm. The plaint in the name of a firm is by itself not a nullity. It is a plaint by all the partners of the firm with a defective description of themselves for the purposes of the Code. In these circumstances, the civil Court could permit amendment of the plaint to enable a proper description of the plaintiffs to appear in it in order to assist the Court in determining the real question or issue between the parties - Purushottam Umedhbai and Co. v. M/s. Manilal and Sons, AIR 1961 SC 325.
-this Rule would not have been in the form it is if the suit instituted in the name of the firm was not regarded as, in fact, a suit by the partners of the firm. The provisions of these Rules of Order XXX being enabling provisions, do not prevent the partners of a firm from suing or being sued in their individual names. These rules also do not prohibit the partners of a firm suing in India in their names individually although they may be doing business outside India - Purushottam Umedbhai and Co. v. M/s. Manilal, AIR 1961 SC 325. Where under Rule 2 disclosure of the names of the partners has been made, the suit shall proceed as if the partners have been named as plaintiffs in the suit, even though the proceedings shall nevertheless be continued in the name of the firm.
Judgment
IMAM, J. : These are appeal by special leave against the order of the Division Bench of the Calcutta High Court dated December 18, 1958, setting aside the order of P. B. Mukherjea, J. dated February 8, 1957, whereby he rejected the petition of the respondent for amendment of the plaint, filed in Suit No. 1452 of 1951 in the High Court, in exercise of its Ordinary Original Civil jurisdiction.
2. The plaint in Suit No. 1452 of 1951 was filed in the name of Manilal & Sons, a firm carrying on business at No. 11A, Malacca Street, Singapore. The partners of this firm were five in number. They were (1) Manubhai Maganbhai Amin (2) Pravinbhai Dahyabhai Patel (3) Gangabhai Ishwarbhai Patel (4) Bachubhai Manibhai Amin and (5) Dahyabhai Trikambhai. The defendant was the firm of Purushottam Umedbhai & Co. (now the appellant) - a firm registered under the Indian Partnership Act, 1932 - carrying on business at No. 55 Canning Street, Calcutta. In July 1949 there was a contract between the plaintiff and the defendant under which the defendant was to sell to the former, subject to certain conditions, 950 bales of Heavy Cees gunny bags c. i. f. Singapore to be shipped from Calcutta in August 1949. It was also agreed between the plaintiff and the defendant in July-August, 1949 that the latter would sell, subject to certain condition, 600 bales of Heavy Cees gunny bags c. i. f. Hong Kong to be shipped from Calcutta in August, 1949. According to the plaintiff, the defendant did not perform the contract entered into by the parties and as a result of the default on the part of the defendant the plaintiff had suffered loss. The plaintiff accordingly claimed compensation to the extent of Rs. 2,73,864 and Rs. 7,850 towards expenses incurred, in all Rs. 2,81,714. The breach of the contract is alleged to have taken place in October and November, 1949. The suit was instituted on April 2, 1951. The defendant s written statement was filed on or about May 21, 1951. The petition for amendment of the plaint was filed on January 31, 1957. The amendment sought was to the effect that the name of the firm Manilal & Sons as plaintiff be struck off and in its place and stead the names of the five persons who were the partners of the firm may be entered in the plaint as plaintiffs. The petitioner also sought the necessary consequential amendment in the body of the plaint. According to the petition praying for amendment, on January 29, 1957, the solicitor of the plaintiff received a letter from the attorney of the defendant to the effect that inasmuch as the firm Manilal & Sons was carrying on business at Singapore, an objection would be taken on behalf of the defendant that the suit, as framed, was null and void and not maintainable. The suit had been pending in the court of P. B. Mukherjea, J. and appeared on the peremptory list, for the first time on January 3, 1957. According to the petition, the petitioner was advised that as the misdescription of the plaintiff was a bona fide one, the names of the partners of the firm Manilal & Sons should be brought on to the record to bring the controversy between the proper parties into clear relief. Accordingly, the petitioner filed the petition for amendment.
3. On a Chamber Summons being taken out, Mukherjea, J. heard the matter and rejected the petition for amendment. He was of the opinion that the original plaint was no plaint in law and therefore was a mere nullity of a process. The proper course, when there is such a mistake, is not to amend, disregarding the conditions of O. I. R. 10 of the Civil Procedure Code, but to seek the court s permission to withdraw the suit with liberty to file a fresh suit under O. XXIII, R. 1 of the Civil Procedure Code on the ground of formal defect and which should be done before limitation. In this opinion, it was not a case of misnomer or a misdescription. It was not a case of a non-existent firm or a non-existence person or of a wrong description but of a legal bar; and when a pl
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