MANILAL AND SONS Vs. PURUSHOTTAM UMEDBHAI

JUDGEMENT

(1.) THIS appeal raises the question whether when a suit has been instituted in the name of a partnership firm carrying on business outside India as plaintiff, a procedure which is not permitted by Order XXX, Rule 1 of the C. P. C. under which only partnership firms carrying on business within India may institute suits in the firm name, the defect can be cured later on by substituting in place of the firm name, the name of the individuals, who are the partners of the firm, by way of amendment. The plaintiff's name as mentioned in the plaint in the present suit is : 'Manilal and Sons, a firm carrying on business at No. 11A Malacca Street, Singapore'. It was subscribed in these words:

(2.) P . B. Mukharji, J., who heard the application, was of opinion that this was not a case of misdescription, but that the legal position was that the firm could not be legally recognised as a plaintiff and the plaint was a mere nullity of process, He also held that there was no scope of applying the provisions of Order I Rule 10 of the C. P. C. and that the only course open to the party was to ask for the Court's permission to withdraw the suit with liberty to file a fresh suit, But, as he himself recognised, this would have been of no use as a freshsuit would be barred by limitation. He was, however, of opinion that as this was not a case of misdescription, it must be held 'to be a case of substitution of new plaintiffs in place of an old one who is legally unrecognised', and to allow an amendment would be to deprive the defendants of the valuable right they have acquired, as the suit on such substitution would be barred by limitation. He further held that as the plaintiff could not sue in the firm name, the application for amendment in the firm name must also fail. On these conclusions, he dismissed the application, but made no order as to costs.

(3.) IF , however as was pressed on behalf of the applicants, the words 'Manilal and Sons' do describe the several individual partners of the firm in Singapore carrying on business under the name and style of 'Manilal and Sons', it will be correct to say that as such a description has not the special protection of the provisions of Order XXX, Rule 1, it is a defective description. Such misdescription can certainly be corrected in law and ordinarily, in the absence of special circumstances, such prayer for amendment should be allowed.