Suit filed as if plaintiff was a proprietary concern.

This civil revision petition is directed against the judgment in A.S.No.140 of 1985 on the file of District Judge, Periyar District at Erode, confirming the judgment in O.S.No.732 of 1982 on the file of the District Munsif, Erode.

2. The short facts are: The respondent had filed suit against the revision petitioner for money due on accounts. That was resisted by the revision petitioner on many grounds. He contended that the suit was not maintainable, and that the plaintiff was not a proprietary concern. After trial the learned District Munsif had rejected the contentions put forth by the defendant and had decreed the suit. Aggrieved by the same, the defendant had filed appeal in A.S.No.140 of 1985. After hearing the parties, the learned District Judge had dismissed the appeal and had confirmed the judgment of the trial court. Aggrieved by the same, the defendant has filed this revision.

3. Mrs.S.Subbulakshmi, the learned counsel •appearing for the revision petitioner would submit that the suit has been filed in the name of wrong person and on that score it is liable to be dismissed. She would submit that the suit was filed as if the plaintiff is a proprietary concern. But the evidence let in during trial had disclosed that the plaintiff is a Registered Partnership Firm. But yet the trial court had decreed the suit. She would further submit that in the appeal amendment of plaint was sought for in I.A.No.310 of 1986 and despite objection, it was allowed and even after amendment, the suit still remains not maintainable inasmuch as, after the amendment, the plaintiff is the family manager whereas Ex.A-22 would show that it is a registered partnership firm and hence this suit continues to be one liable to be dismissed, as not maintainable. Per contra. Mr.S.Jagadeesan, the learned counsel appearing for the respondent would submit that the dealings were admitted and no prejudice is caused to the defendant by the amendment of the name of the plaintiff.

4. I have carefully considered the submissions made by rival counsel. The plaintiff, as per the original plaint, before amendment, was Sami Colour Company by Proprietor M.Palaniappan. In the written statement in paragraph 4, it is averred as follows: “the defendant does not admit that the plaintiff is a proprietary concern and the plaintiff is bound to prove the same.” In paragraph 2 of the written statement, it is averred as follows: “This suit as framed by the plaintiff is not maintainable in law and therefore, it is liable to be dismissed in limine”. During trial, the name of the plaintiff is not amended. During the time when appeal was pending, a petition was filed in I.A.No. 310 of 1986 praying for amendment of the name of the plaintiff in the short cause title and in the long cause title. The amendment sought for was to delete the description of the plaintiff and substitute the following, which translated into English reads as follows: “Family Manager M.Palaniappan, Sami Colour Company”. In the long cause title, the amendment sought for, which translated into English reads as follows: “Family Manager M.Palaniappan, aged 50, father’s name Muthusami Mudaliar, Sami Colour Company, Easwaran Koil Street, Erode.”

5. In the affidavit filed by M.Palaniappan in sup-port of the application in I.A.No.310 of 1986 he has stated as follows: “The respondent has filed the above appeal and has raised a technical plea that the description of the plaintiff is wrong and that the frame of the suit is defective. So, I have come forward with this petition praying for an amendment of the plaint to avoid the technical objection.” Then, in paragraph 3 of the affidavit, he has stated as follows: “The business Sami Colour Company by name Sami Colour Company is a business of the family consisting of myself and my two sons and so, it is a joint family concern. So, the plaintiff ought to have been described as family Manager Palaniappan, Sami Colour Company. Since the business belongs to the family and