JOHARMAL RAMKARAN Vs. LAXMANDAS SHIVLAL

JUDGEMENT

(1.) The plaintiffs have filed this suit against Laxmandas Shivlal who are described as a firm carrying: on business as merchants at Parbhani in the territories of H.E.H. the Nizam of Hyderabad. In paragraph 9 of the plaint they have stated that a material part of the cause of action in this suit has arisen in Bombay and that with leave granted under Clause 12 of the Letters Patent this Court would have jurisdiction to entertain this suit. Leave under Clause 12 of the Letters Patent was granted and the plaint was admitted on the file by the chamber Judge on June 22, 1933. It is not mentioned anywhere in the body of the plaint that the plaintiffs were suing a firm consisting of a single proprietor. On the face of the plaint, the plaint did not fall within the provisions of Order XXX, Rule 1, which enables "any two or more persons claiming or being liable as partners and carrying on business in British India to sue or to be sued in the name of the firm of which such persons were partners at the time of the accruing of the cause of action." The plaint on that ground should have been rejected.

(2.) On July 10, 1933, the plaintiffs obtained a chamber order (exhibit B) from the Prothonotary and Senior Master ordering that the writ of summons in this case should be served by registered post on behalf of the defendant firm upon one Hemraj Shivlal at his address at Parbhani in the territories of H.E.H. the Nizam of Hyderabad. Mr. Amin, on behalf of the plaintiffs, asks me to infer from a recitation in this order which is that Hemraj Shivlal was carrying on business in the name of the firm Laxmandas Shivlal that Hemraj was being sued personally in this case as the sole proprietor of the defendant firm. The affidavit of service, exhibit 4, shows that the registered letter containing copy of the writ of summons was served upon one Madhavrao Tata, who has signed the acknowledgement on behalf of Hemraj Shivlal. Prior to the institution of the suit, the defendants attorneys by their letter, exhibit A, dated October 14, 1932, had informed the plaintiffs attorneys that Hemraj Shivlal was the sole proprietor of the firm carried on in the name of Laxmandas Shivlal. The plaintiffs attorneys evidently lost sight of this fact when they gave instructions to counsel to draw the plaint The defendant firm filed points of defence on August 26, 1933. In these points of defence the defendant firm has not specifically raised the point that the suit is not maintainable. Both in paragraph 3 and in paragraph 5 of the points of defence, the defendants state that Hemraj Shivlal is the proprietor of the defendants firm. On November 7, 1933, the defendants addressed their letter (exhibit 1) to the plaintiffs attorneys enclosing therein a consent precipe for being signed by the plaintiffs attorneys for taking further points of defence of the defendants on the file, and a copy of the further points of defence which the defendants were proposing to file. The further points of defence of which a copy was sent contained only one paragraph which was as follows: The defendant firm carries on business at parbhani in the Territories of H.E.H. the Nizam of Hyderabad and the suit as framed is not maintainable and should be dismissed with costs.

(3.) The plaintiffs attorneys, by their letter, dated November 9, 1933, (exhibit 2), declined to sign the consent precipe and objected to the new plea being raised at that stage of the proceedings. They intimated that if the defendants wished to make an application to the Court for taking the supplemental points of defence on file they should give proper notice to the plaintiffs who were desirous of opposing the application. Prior to addressing their letter, exhibit 1, the defendants attorneys had, on October 31, 1933, addressed a letter, exhibit 3, to the plaintiffs attorneys. In that letter they had inter alia stated as follows: We have also to inform you that at the time of the hearing of the suit, our clients will plead that the defendant firm being a foreign firm cannot be sued and hence the suit as framed is bad in law and should be dismissed with costs.