The legal entity of the plaintiff firm was not recognized by law, and the amendment to the plaint could not rectify this fundamental issue.

JUDGMENT

Buckland, J. - This is an application to amend the plaint in a suit; which was instituted by

Neogi Ghose Co., a firm carrying on business as plumbers at No. 15/1 Jugal Kishore Das Lane in the town of Calcutta plaintiffs.

2. The plaint is verified by Phanindra Nath Ghose, who has described himself as a partner of the plaintiff firm, Anybody reading this would certainly form the opinion that there was move than one partner, and that the suit was properly brought in the firm name under Order 30, Civil P.C.

3. The suit came on for hearing and it transpired that Phanindra Nath Ghose is the sole proprietor of the business carried on under the name Neogi Ghose Co." In these circumstances an objection was taken that the suit in the name of Noogi Ghose & Co. as plaintiffs was incompetent as a suit may not be instituted by an individual carrying on business under a name otherwise than in his own name. 'The hearing was accordingly adjourned to enable the plaintiff to make such application in the matter as he might be advised.

4. This application is to amend the plaint by inserting the words Phanindra Nath Ghose carrying on business under the name and style of" before the name ''Neogi Ghose Co." in the cause title and to make other appropriate consequential alterations in the body of the plaint in effect to convert the suit into one which it would be competent for this Court to try.

5. It is submitted on behalf of the applicant that the error is of description, and that on the plaint being amended Phanindra Nath Ghose as plaintiff would be entitled to claim the relief for which the suit has been brought.

6. On behalf of the defendant it is contended that if the amendment is allowed the plaintiff would only be entitled to such relief as he could have claimed if the suit had commenced today. I have been referred to The Vyankatesh Oil Mills Co. Vs. N.V. Velmahomed, AIR 1928 Bom 191 where a point not dissimilar was considered. That was a case where persons carrying on business in partnership, but not within British India, sued under their firm name, which they were not entitled to do under Order 30, Rule 1. The learned Judge took the view that the suit was badly framed from the outset and that the plaintiffs were an entity not recognized by law, and that the amendment asked for could not be treated as an amendment following upon a mere misdescription but as an application for the substitution as plaintiffs of the individual persons who composed the entity which the law did not recognize with this I entirely agree.

7. I am by no means certain that in such circumstances the application should not be dismissed but having regard to what learned Counsel for the defendant has said and what was ordered in the case cited, the order I would be prepared to make would be that the amendment should be allowed upon the terms that the plaintiff should pay all costs incurred up to the date of the amendment, and I should also direct that the plaintiff would only be entitled to such relief as ha would be entitled to claim if the suit had gone on from the time of his being joined as plaintiff. But as in these circumstances learned Counsel on behalf of the applicant says that the suit would be barred by limitation, ha has asked me that, if I take that view, I should dismiss this application outright, which, I accordingly do with costs.