The main legal point established in the judgment is the distinction between misdescription and addition of a new defendant in a suit, as well as the limited liability of co-parceners in a joint family trade.

1. This is an appeal from the decision of Subordinate Judge of South Malabar at Kozhikode in O. S. No. 41 of 1948. The suit was for damages for the breach of a contract of affreightment and the return of the advance freight paid by the plaintiffs.

2. The total claim was for a sum of Rs. 10,736 -10-6. The lower Court said:

"The suit is decreed with costs against defendants 1 to 3 jointly and severally for the sum of Rs, 10,736-10-6 with interest thereon at 6 per cent, from the date of plaint and full costs of suit with interest thereon at 6 per cent from this date till realisation".

3. The 2nd defendant was the tindal of the country craft Rehmania, the vessel concerned in this case. He has not chosen to appeal and the decree as far as he is concerned does not arise for consideration.

4. In the plaint as originally filed there were only two defendants:

"Tulsidas Mulji son of Mulji Vishram trading under the name and style of Vishram Khimjee"

and Hasan Ayoob, the tindal mentioned in Para.3 above. The plaint was subsequently amended as per the order in I. A No 1738 of 1953 dated 18-2-1954 and the 3rd defendant, described as follows, was brought on record:

"Moolji Vishram son of Vishram Khimjee trading under the name and style of Vishram Khimjee"

5. The bill of lading is Ext. A-1 dated 26-11-1947. It shows that the undertaking was to carry 55,000 tiles and 600 ridges from Calicut to Colombo by the country craft Rehmania, that the total freight payable was Rs. 3,948-0-9 and that out of the said amount, Rs. 1,974-0-0 was paid as advance freight by the plaintiffs.

6. The goods were not delivered at Colombo. The suit and the decree followed.

7. According to the 1st defendant (1st appellant) he never had any connection with the trade "Vishram Khimjee", the vessel Rehmania or the transaction concerned. According to the 3rd defendant (2nd appellant) he is the sole owner of the said trade and vessel, and as he was brought on record only after the period of limitation no decree should have been passed as against him.

8. The contentions of the plaintiffs (respondents) are: (1) the suit all along has been against "Vishram Khimjee";

(2) "Vishram Khimjee" is the name of a joint family trade conducted by the 3rd defendant and his sons, inclusive of the 1st defendant; and

(3) the amendment effected was the correction of a misdescription - not the addition of a new defendant and so no question of limitation affects the claim made in the suit.

9. We propose to assume, without deciding, that the plaintiffs are right when they say that "Vishram Khimjee" represents a trade of the joint family.

10. O.30, R.10 of the Code of Civil Procedure 1908, provides:

"Any person carrying on business in a name or style other than his own name, may be sued in such name or style as if it were a firm name; and, so far as the nature of the case will permit, all rules under this Order shall apply."

In A. I. R.1936 Madras 707 the Court took the view that R.10 applies only to an individual carrying on business under an assumed name. The Court said:

"R. 10, 0.30, is modelled on 0.48 (a), R.11, the corresponding English provision. That rule applies, it has been held in England, to a single individual who carries on business under an assumed or trading name. R.10, 0.30 stands in marked contrast with R.L. The latter rule applies to 'any two or more persons,' whereas R 10 refers to 'any person carrying on business'. There is no reason to depart from the view taken in the English cases and we must hold that R 10 is applicable only to the case of a single individual."

11. The view of the Madras High Court has come up for criticism and dissent in other Courts. In A.I. R.1941 Patna 596, Fazl Ali, J., referred to the view expressed in A.I.R. 1936 Madras 707, and said:

"With that view I agree subject to this qualification only that there is nothing to prevent this rule being applicable to those cases where more persons than one carry on business in an assumed name, though strictly speaking t