JUDGMENT - MAHAJAN S.G., J.:---By consent recorded on 15-1-2003, this revision is being disposed of finally at the stage of admission itself.

2. The question involved in this revision is whether the sole proprietor of a firm can sue in the name of firm?

3. Respondent No. 1 herein, which is a proprietary concern, filed Special Civil Suit No. 33 of 1995 in the Court of Civil Judge, Senior Division, Bhandara, for the recovery of the amount, against the State of Maharashtra and other defendants, one out of whom is Municipal Council, Tirora, which is the revision-petitioner in this revision. The suit was instituted by respondent No. 1 in the name "K Ravindra and Company, through its proprietor Shri Narayan Sakharam Kantode, aged about 60 years, resident of A/22 N.S.K. Society, Civil Lines, Nagpur". The case was once closed for judgment. Then after the Presiding Officer of the Court was transferred, the case came up before another Judge, who posted it for arguments. At that stage, the present revision-petitioner (Municipal Council, Tirora), which is defendant No. 3 in the aforesaid suit, filed an application for the dismissal of suit, raising an objection that the suit is filed by "K. Ravindra and Company", which is neither a partnership firm nor a limited company and its proprietor cannot file a suit in the trade name of the proprietory firm. By the order dated 21-10-2002, the learned Joint Civil Judge, Senior Division, Bhandara, rejected the above application filed by the present revision-petition, which order of rejection is under challenge in this revision.

4. The learned Counsel for respondent No. 1 assailed the very maintainability of the present revision in view of the amendment of 1999 to section 115, Civil Procedure Code whereby Clause (b) of proviso to sub-section (1) of section 115, Civil Procedure Code is deleted. The learned Counsel cited (Rajabhau s/o Mahadeorao Rahate v. Dinkar s/o Shantaram Ingole)1, 2003(1) Bom.C.R. (N.B.)40 . The learned Counsel canvassed that even if it is held that the sole proprietor of the firm cannot sue in the name of the firm, the suit cannot be dismissed and in view of some authorities, the rectification can be made in the name. Hence, according to her, even if the order goes in favour of revision petitioner, the suit would not be disposed of finally, so the revision would not be maintainable. However, it may be seen that the application moved by the revision petitioner before the trial Court was for the dismissal of the suit, which was rejected by the trial Court. This rejection is impugned in the present revision. If the contention of the revision-petitioner is accepted, the suit will stand disposed of finally and thus by virtue of proviso to section 115, Civil Procedure Code, the revision would be maintainable.

5. In support of her proposition about the non-maintainability of the suit, the learned Counsel for revision-petitioner cited (R.J. Mohammed Yakub Saheb v. M/s. Dipa Sahu Deoki Prasad and others)2, A.I.R. 1959 Patna 200. In this cited case, the suit was brought against the Hindu joint family trading firm in the name assumed by such firm. It was held that a Hindu joint family trading concern, though not a firm in the legal sense, may be sued in its assumed name of the business under the provisions of Order 30, Rule 10, Civil Procedure Code, but such a Hindu joint family trading concern cannot sue as a plaintiff in the firm name under the provisions of Order 30, Rule 1, Civil Procedure Code. Such a suit must be brought either by the Karta of the family or by all the members of the joint family who are coparceners. In the cited case, Hindu joint family carrying on business under its assumed name was a party. The provision of Order 30, Rule 10, Civil Procedure Code is also applicable to the person carrying on business in a name or style other than his own name. Hence such person can be sued in the assumed or trading name, but he cannot sue as a plaintiff in the assumed or trade name. The

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