A suit against partners of a firm is maintainable even though the firm is not initially impleaded as a defendant, and an amendment of the plaint to include the firm as a defendant can be allowed if it is not barred by limitation.

R.N.Sahay, J.

1. These first appeal and civil revision application have been heard together since the same order has been challenged both in appeal and civil revision.

2. The brief facts for disposal of these matters are as follows:

Hazaribagh Central Co-operative Bank Ltd., Hazaribagh (appellant in the fire appeal and petitioner in civil revision) (hereinafter to be referred to as the plaintiff) filed Money Suit No. 86/73 in the court of Subordinate Judge, Hazaribagh against one Md. Hafiz and Md. Rafique (to be referred to as the defendants) who were own brothers. Defendant No. 1 Md. Hafiz died during the pendency of the suit and his heirs have been substituted. The defendants deal in ready-made garments under the name and style of M/s. Bangalore Dresses in the town of Hazaribagh. The plaintiff had advanced a loan of Rs. 45,286.49 to the defendants which was not repaid. The defendants on receiving summons appeared and applied for time to file written statement, but despite several adjournments, no written statement was filed. The defendants have filed a petition challenging the maintainability of the suit. The plaintiff by way of abundant caution, filed a petition on 20.12.82 for amendment of the plaint.

The following amendments were sought for: (a) in paragraph 2 of the plaint, the word owners be deleted and substituted as partners.

(b) In para 5 of the plaint the word defendant who be deleted in the beginning of the paragraph and the following may be inserted "Md. Hafiz (since dead and represented by his legal representative) having implied authority of a partner dealt with the transaction of loan to carry on usual way the business of his firm M/s. Banglore Dresses and he and other defendant."

(c) That in the same paragraph 5 after the date 21.2.1966 the defendants partners be inserted before the word approached.

(d) In the cause title of the plaint, the following be inserted in the category of the defendants "M/s. Banglore Dresses (Govt. Contractor & General Order Suppliers) Dealer Ready-made Dresses and Fancy Saree, Hazaribagh through its partners the defendant Nos. 1 to 2".

(e) After paragraph 7, new paragraph 7 (A) be inserted: 7a- That it has not been made known by the defendants to the plaintiff as to the names of the partners of the defendant No. 3 and hence the defendant No. 3 is being sued through all the defendants as partners. In future if the names of the partners are disclosed by the defendants, the plaintiff keeps his right reserved to amend his plaint accordingly.

3. Plaintiff filed another petition on 20.11.1982 stating that it was desirable to dispose of the amendment petition first and the hearing of the preliminary point raised by the defendants be deferred.

4. Defendants took time to file rejoinder and rejoinder was filed on 11.12.1982. The defendants objected to the prayer for amendment. Prayer for amendment and question of maintainability were heard together. The learned Subordinate Judge rejected the prayer for amendment of the plaint on the ground that it could not be allowed since the period for limitation for instituting the suit had expired. The Subordinate Judge further held that the amendment shall also change the nature and character of the suit: He held that the suit was not maintainable since the firm M/s. Bangalore Dresses was not impleaded and hence in view of Order 30 Rule 1 C.P.C., the suit against the partners was not maintainable.

5. Sri P.K. Prasad, counsel for the defendants raised a preliminary objection that neither the first appeal nor the civil revision is maintainable. The civil revision is not maintainable because the order of the Subordinate Judge is a decree against which appeal has been filed. The appeal is maintainable in view of amendment in Assam Civil Courts Act raising the pecuniary jurisdiction of the District Judge to Rs. 60000.00 , the memo of appeal has to be returned to be presented before the proper court.

6. I would first examine the question as to whether