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HIGH COURT OF CALCUTTA
P. B. Mukharji
MANILAL AND SONS - Appellant
Versus
UMEDBHAI AND CO. - Respondent
Suit 1452 Of 1952
Decided On : FEBRUARY 08, 1957
CIVIL PROCEDURE CODE - ORDER 1, RULE 10 - AMENDMENT OF PLAINT - SUBSTITUTION OR ADDITION OF PLAINTIFF - CONDITIONS - LIMITATION - SECTION 22(1) - APPLICABILITY - IGNORANCE OF LAW - NOT A SPECIAL CIRCUMSTANCE - APPLICATION FOR AMENDMENT BY NON-RESIDENT FIRM - INCOMPETENT.
Fact of the Case:
The plaintiff, a non-resident firm not carrying on business in India, filed a suit in the name of the firm. After a delay of six years, the plaintiff applied for an amendment to strike off the firm's name and introduce the names of five partners as plaintiffs.
Finding of the Court:
The court held that the amendment was not permissible under Order 1, Rule 10 of the Code of Civil Procedure, as none of the two conditions specified in the rule were present. The court also held that the amendment would be barred by limitation under Section 22(1) of the Limitation Act, as the claim was already barred at the time the amendment was sought. The court further held that the application for amendment was incompetent as it was made by the non-resident firm, which was not a legally recognized person.
Issues: 1. Whether the amendment of the plaint was permissible under Order 1, Rule 10 of the Code of Civil Procedure? 2. Whether the amendment would be barred by limitation under Section 22(1) of the Limitation Act? 3. Whether the application for amendment was incompetent as it was made by the non-resident firm?
Ratio Decidendi: 1. The court held that the amendment was not permissible under Order 1, Rule 10 of the Code of Civil Procedure, as none of the two conditions specified in the rule were present. The court held that the plaintiff firm was not a "wrong" person suing as plaintiff, as it was a legally incompetent person. The court also held that it was not doubtful whether the suit had been instituted in the name of the right plaintiff, as it was clear that a non-resident firm not carrying on business in India could not sue as a plaintiff firm. 2. The court held that the amendment would be barred by limitation under Section 22(1) of the Limitation Act, as the claim was already barred at the time the amendment was sought. The court held that the amendment would introduce new plaintiffs, and that such substitution or addition would be deemed to have been made when the plaintiffs were actually made parties, which would be after the limitation period had expired. 3. The court held that the application for amendment was incompetent as it was made by the non-resident firm, which was not a legally recognized person. The court held that if the plaintiff firm could not sue as such, then it could not apply as such in the suit.
Final Decision: The court dismissed the application for amendment.
( 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 and 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 to explain the long delay of six years in making this application for amendment. All that is said In the petition 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 Singapore an objection would be taken on behalf of the defendant at the hearing of the suit that the suit as framed was not maintainable. The applicants, therefore,
submit in the petition that they were advised that the misdescription of the partners in the cause title of the plaint being bona fide, their names should be brought on the record. Whether a suit by a non-resident firm not carrying on business in India is maintainable or not is a question of law and cannot be made to depend on the in formation conveyed by the defendants' solicitors on January 29, 1957. The plaintiffs must see that a proper plaint is filed on their behalf and' it is not for them to wait for the defendant to point out the defect. The delay, therefore, on the part of the defendant in pointing out the defect in the plaint can be no justification for the plaintiff's de fault in filing an incompetent plaint and then in not having the necessary amendments made in proper time. It is no explanation in law and is no defence for the plaintiffs to say that it did not know 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 written statement. I do not think it matters at all It al- 'ways remains the obligation of the plaintiff to see that a legally competent person sues on be half of the plaintiff and a proper plaint is filed by a legally recognised plaintiff under the laws of this country. Ignorance of law being no excuse, the submission that such Ignorance is bona fide does not afford any more excuse either. Law is notorious for its arrogance of assuming that it is known to all. The reason for this piece of arrogance is sheer self-defence because otherwise every one will be free to break
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