A suit can be maintained under Order 30, Rule 1 of the Civil Procedure Code even if it is instituted by one partner in the name of the firm, and the other partners who refuse to join are not necessary parties.

JUDGMENT

R.C. Mitter, J. - In this case a suit was brought for the recovery of the price of coal supplied to the defendants who were partners of a firm carrying on business under the name and style of Satis Chandra Nandy and Company. The cause title of the plaint was as follows:

Bhadreswari Coal Supply Company through Manik Lal Roy, plaintiff v. Satis Chandra Nandy and Company represented by Jnanendra Nath Nandy and others, defendants.

2. At the date of the suit three persons namely Manik Lal Roy, Sripati Charan Mukherjee and Bhujendra Nath Bhadra were partners of a firm carrying on business under the name of Bhadreswar Coal Supply Company. They were also partners of the same firm carrying on business under the same firm name when the defendant Company bought the coal. The finding of the learned District Judge is that the said partnership of Manik Lal Roy, Sripati Charan Mukherjee and Bhujendra Nath Bhadra commenced under a deed of partnership and the partnership was still continuing at the date of the suit. To the suit as originally framed Sripat Charan Mukherjee and Bhujendra Nath Bhadra were added as pro forma defendants, but the notice of the suit was not served on them and ultimately they were dismissed from the suit on the ground of non-service of the summons. The suit thereafter continued as a suit by the 'Bhadreswar Coal Supply Company' represented by Manik Lal Roy against Satis Nandy and Company. To the suit two substantial defences were taken. The first was that the suit was not maintainable and, secondly, that the claim of the Bhadreswar Coal Supply Company had been satisfied by payments. The learned Subordinate Judge overruled both these pleas and granted a decree in favour of the plaintiff firm for Rs. 1,577 8-6 less Rs. 275 admitted to have been paid, with interest at 12 per cent. The defendant firm filed an appeal before the learned District Judge. The learned District Judge did not enter into the plea of payment set up by the defendants but dismissed the suit on a preliminary point.

3. He held that a suit under the provisions of Order 30, Civil P. C., can be instituted in the name of the firm only if the suit is instituted by two or more partners of the firm. He came to the conclusion that inasmuch as the suit has been instituted by one partner, viz. Manik Lal Roy, in the name of the firm, the suit was not maintainable. The learned Advocate for the plaintiff firm urges before us that the view taken by the learned District Judge is erroneous. He says that a firm or a partnership must consist of two or more persons and Order 30, Rule 1, enables a suit to be carried on in the name of the firm, and it does not matter whether the suit is filed at the instance of one or more of the partners. Mr. Chakravarti, who appears on behalf of the respondents, contends that Order 30, Rule 1, can only apply when all the partners of a firm desire to institute a suit. He says that the said rule only provides for a convenient form of suing, and for the purpose of supporting his contentions he takes us through the history of the law. He says before 1908 all the partners of a firm had to be named in the plaint in order that the suit may be a good one. They had all to appear by name as plaintiffs, and such of them as were unwilling to join as plaintiffs had to be put down in the plaint as pro forma defendants. He accordingly argues that where all the partners of a firm do not agree to institute a suit, a suit cannot be instituted in the name of a firm; for a suit instituted in the name of a firm must be taken to be a suit instituted by all the partners of a firm, and in a case where some of them refuse to institute a suit, the dues of the firm can only be realised by following the same procedure which had to be followed before the introduction of Order 30 in the Code of 1908, that is to say in such a case the partner intending to sue must sue in his own individual name making the others who are unwilling to join him as defendants in the