MT SUGA KUER Vs. FIRM BRIJRAJ RAMNIWAS

JUDGEMENT

(1.) The applicant here is defendant 1, a pardanashin lady, against whom a Small Cause Court suit was brought for the price with the interest of goods supplied on credit for her through her servants, defendants 2 and 3, said to be gumasta and cook, respectively. The suit was instituted in the name of the Firm Brijraj Ramniwas and was defended on the grounds that an unregistered firm was incapable of maintaining a suit under Section 69, Partner, ship Act; secondly, that the fact of supply of the goods was denied; and thirdly, that this defendant had never authorized those servants to obtain goods for her on credit and was not liable for any transactions that they might have entered in her name without her authority. Now on the first point Section 69, Partnership Act, 1932, is perfectly dear. The suit instituted in the name of a firm not being a registered firm is not properly constituted and cannot proceed in that form. But Mr. De for the opposite party contends that the so called firm is not in fact a partnership but is a business carried on by Ramniwas who has chosen the style of Firm Brijraj Ramniwas for carrying on business. Such a business is not a partnership and is not properly described as a firm for the purposes of Secs.4, 5 and 6, Partnership Act, 1932. That is BO; but the present suit was instituted in the name Firm Brijraj Ramniwas and the proprietor cannot go behind, the description in the plaint unless and until he gets the plaint amended. It was contended for the petitioner that as the suit was prosecuted to its conclusion without amending the plaint, no further opportunity should be given at this late stage for its amendment and the suit ought now to be dismissed. On the other hand, the Partnership Act has been in force for a very limited time and the Bar as well as business people in outlying Districts may not be yet so familiar with its provisions that it would be appropriate to enforce them too rigidly at present in oases where the institution of the suit under the wrong name may have been due to mistake. A similar state of affairs was considered in Misc. Appeal No. 366 of 1935 decided by Sir Stewart Macpherson and Khaja Mohammad Noor, JJ., on 8 April 1936, where the lower Appellate Court had given a remand in order to allow the plaintiff an opportunity to amend his plaint and to have the suit tried on the merits. The order was on second appeal upheld. A similar procedure was followed in Amulakchand V/s. Babulal , where leave to amend was allowed but it was emphasized that the plaintiff whose mistake in framing his suit had led to trouble must bear all the costs incurred up to the date of the amendment.

(2.) It was then suggested for the opposite party that to allow an amendment at this stage may work hardship to his client because some of the items of the claim may by now have become time-barred and therefore the plaintiff should not be allowed to carry on the suit already instituted. I do not think that, that is a matter which should weigh with the Court either way. The question really is whether the defect in the plaint is of the nature of a mis-description of the plaintiff or a case of bringing the suit in the name of a nonexistent person, so that the amendment involves bringing in a new plaintiff on the record so as to import the provisions of Section 22, Limitation Act. The distinction is discussed in the Bombay case just cited and in the earlier decision--Ram Prasad Shivlal V/s. Shirinivas Balmukund AIR 1925 Bom 527--in which it was held that the amendment did not amount to an addition of parties but merely the substitution of the name in order to correct a misdescription. Therefore, I propose, while pointing out that the suit in its present form was improperly constituted and could not properly be decreed, to allow the plaintiff an opportunity of obtaining a decision on the merits after amending the plaint in the Court of first instance subject to conditions. Before stating those conditions, I shall refer to the other point raised as to the lack of authority in the servants to order goods on credit for the petitioner's use. Express written authority has not been set up. The Court of first instance has not come to any very definite finding on the question whether the servants had authority or no and if the plaintiff amends his plaint and the case is re-heard, it will be necessary to come to a finding. I may, therefore, set out the principles in the light of which the Small Cause Court Judge will have to decide this point.

(3.) Section 187, Contract Act, refers to an authority as implied when it is to be inferred from the circumstances of the case, and we all know that the classic instance of an implied authority being presumed is that of husband and wife. As regards master and servant, the authority has been presumed in such oases as when a master frequently sent a servant to market without ready money so that the servant is trusted upon the master's account. A detailed examination of the question of liability of the principal for an act of his agent was made in Lloyd v. Grace Smith & Co. (1912) AC 716. The person claiming against the principal must show that the act done was within the scope of the authority or ostensible authority held or exercised by the agent and this can be shown by practice as well as by a written instrument. Lord Shaw said: When the authority does ostensibly include within its scope transactions of a particular character, then, quoad a third party dealing in good faith with such an agent, the apparent authority is, as is well settled, equivalent to the real authority and binds the principal.