HAJEE SATTAR HAJEE PEER MAHOMAD Vs. KHUSIRAM BENARSILAL

JUDGEMENT

(1.) This is an application for amendment of the plaint. The suit is for damages for breach of contract. In the cause title, the Plaintiff is described as "Hajee Sattar Hajee" "Peer Mahomad, a firm". It is alleged that Hajee Sattar Hajee Peer Mahomad is the name of an individual carrying on business in his own name and with him the contract was made and the words "a firm" were inserted by mistake. By this application the Plaintiff seeks only to delete the words "a firm" in the cause-title, leaving the rest of the plaint as it is.

(2.) The sole question is whether this is a case of correcting misdescription or that of adding a new Plaintiff in the place on the old one. If it is the former, there can be no objection to the order being made, while if it is the latter, it must be refused, as in that case, under Section 22 of the Limitation Act, this suit would then be deemed to have been instituted on the day the order is made and on that basis it would be barred by limitation. I seems, the question under that section properly arises at the hearing of the suit, but, as the matter has been argued at some length, I had better express my view of it.

(3.) Mr. Deb, opposing the application, argued that Neogi Ghose and Company v. Sardar Nehal Singh,1931 35 CalWN 432, concludes the matter. I am clear in my mind that, both on authority and on principle, that case requires reconsideration. I would first point out that, on the facts, that case is no authority of any help in this case. That was a case where a Plaintiff carrying on business in a name other than his own had instituted a suit in that name and then applied for amendment of the plaint by bringing in his own name in the place of his assumed trade name, the suit, as framed, being clearly not maintainable. Buckland J. held that such an amendment was a case of substitution, i.e., really of addition of a new. Plaintiff and not of the correction of a mere misdescription. The case before me is not of that kind at all. It is not a case of an individual trading and suing in a name other than his own but of one trading in his own name and who has sued in that name but has unfortunately and mistakenly added the description "a firm" in the plaint after his name. How can this be a case of substitution? The Plaintiff, before the amendment, was Hajee Sattar Hajee Peer Mahomad, and after the amendment, the Plaintiff would remain the same. The Plaintiff says, "I had said I was a firm "but that is wrong, for I am only an individual. Allow me to "correct my mistake." Mr. Deb said a man's own name may become his firm name. I do not follow that at all. A firm name is only another name of the proprietor, or the proprietors collectively, carrying on the business using that firm name. How can a person carrying on business in his own name be said be trading in a firm name, for it is his own name and not mother name? To describe such a name as the name of a firm (sic) business is clearly wrong. The present case is, therefore,--(sic) different from Neogi Ghose and Co's case .