K.PL.S.PL. FIRM, COLOMBO BY ITS PARTNER K.PL.S.PL. SUBRAMANIAN CHETTIAR Vs. RM. P. MR. M. SUBRAMANIA CHETTIAR AND ORS.

JUDGEMENT

(1.) A suit was filed by a firm purporting to be a partnership firm against four defendants. The defence was that all the partners who constituted the plaintiff partnership firm were not brought on record or their names disclosed. Learned Counsel for petitioner says that beyond this, the contesting defendants did not seek for a disclosure of the names of all the partners who constituted the partnership firm. Be that as it may, the suit went on and it is conceded that the suit has been dismissed and an appeal as against the dismissal was preferred by the plaintiff -firm as it was on record. It appears that the trial Court also went into the question about the maintainability of the suit by a partnership firm without fully disclosing the names of its other partners. The trial Court dismissed the suit also on the ground that such a suit without disclosing the names of all the partners was not maintainable. Being aggrieved by both findings of the trial Court, the petitioner -firm, as already stated, filed, an appeal in the usual course, A.S. No. 29 of 1976, on the file of the District Judge, Ramanathapuram. In the course of the hearing of such an appeal, an application was taken out by the firm as on record under Order 1, Rule 10, Civil Procedure Code, seeking to implead the other partners as formal respondents to the appeal in order to overcome the technical difficulty which arose in the course of trial. The proposed respondents, who were the legal representatives of the deceased partner of the firm, remained ex parte. This shows that they were not opposing the move of the partnership Son as undated by one of its partners. The contesting defendants -respondents, however took up the plea that the application was a belated one and it ought not to be uncertained. This found favour with the District Judge, Ramanathapuram. He WAS of the view chat the plaintiff -firm was in different in not having taken out such an application earlier and particularly during the trial stage and he Was also of the view that by impleading formally, the legal representatives of the other partner, who by then died, it would necessitate the filing of an additional written statement besides working hardship on the contesting defendants. On these grounds, the application was rejected. It is as against this, the present civil revision petition has been find.

(2.) IT may not be necessary in this case to go into the question as to what would be the effect of a defectively instituted suit by a firm by or some of its partners without disclosing the names of all its partners. The answer to this technical flaw or infirmity in the pleadings is found in Order 30, Rule 2, Sub -rule (2) of the Civil Procedure Code. This sub -rule enjoins the trial Court to stay such an imperfectly alleged pleading and proceed with the suit as soon as the names of all partners are declared as provided for in Order 30, Rule 2(1) These provisions have been therefore, characterised by the Supreme Court in Purushottam Umedbhai and Company v. Manilal and Sons, (1961) 1 M.L.J. 283 an enabling provisions. The word adverted to being "enabling", it appears to me that the non -conformity with the intendment and prescription in Order 2, Rule 2 is not fatal to the action already instituted by a partnership firm without disclosing the names of all its partners. The only result of such imperfection would be to stay the suit until there is a total disclosure of the names of all the partners. The question in the instant case, however, is slightly different. There has not been a demand as was required under Order 30, Rule 2(1) of the Civil Procedure Code, by the contesting defendants, whereby the plaintiffs were called upon to declare in writing the names and the place of residence of all the persons constituting the firm on whose behalf the suit is instituted. On the other hand, however, Mr. Jayaraman says that the defence of the contesting defendants was to the effect that the suit has not been properly framed. For reasons not very clear, the parties went to trial with such imperfect pleading. But the trial Court, without staying the suit as required under Order 30, Rule 2(2) adjudicated the subject -matter and was of the view that the suit was not maintainable.

(3.) It also went into the merits of the case and found against the plaintiff. A substantia1 appeal has been filed as against such findings of the trial Court. It was at the appellate stage that the plaintiff wanted to fill up the lacuna. For that purpose he took out an application under Order 1, Rule 10, Civil Procedure Code, for impleading the legal representatives of the other partner, who by them. died, and did not even seek any relief as against the proposed parties. Such an attempt was made in order to complete the record and to obviate any technical objection at the appellate stage. The proposed parties could not oppose, as in the circumstances of the case, any claim or relief asked for by the plaintiff became they were setting along with them. In fact, they were set ex parte in the Court below and they did not appear before me. Obviously they have left everything to the only partner who is representing the firm and who is continuing the legal proceeding. In the absence of any fresh. pleading, which is possible only by the proposed parties, I am unable to understand as to what prejudice would be caused to the contesting defendants by the proposed parties being brought on record. At it would neither prejudice the contesting defendants nor would it put them to any inconvenience as it may not be necessary for them to file an additional written statement, the surmise made by the District Judge appears to be not justified in the instant case. The appellate Court ought to have allowed the application. The order of the Court below is, therefore, set aside. The lower appellate Court is directed to implead the proposed parties as formal respondents to the appeal and proceed with the appeal in a manner known to law as if all the proper parties are there before it. There will be no order as to costs.