Manilal And Sons vs Purushottam Umedbhai And Co. on 18 December, 1958

    Manilal And Sons vs Purushottam Umedbhai And Co. on 18/12/1958

JUDGMENT

   Das Gupta, C.J.

   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:

     "Manilal and Sons

     by their constituted attorney

     D. P. Dunderdale".

   The verification was also by the same gentlemen, D, P. Dunderdale, describing
himself as constituted attorney of Manilal and Sons. This suit was instituted on
31-3-1951. Written statement was filed by the defendants, but no objection was
taken therein to the defect indicated above namely, that though not permitted by
the Code of Civil Procedure or any rules of the Original Side of this Court, the
suit had been brought in the name of the partnership firm carrying on business
outside India. The suit appeared in the Peremptory List of P. B. Mukharji, J.,
for the first time on 3-1-1957 and appeared therein for several days. On
20-1-1957, the defendant's Solicitor informed the plaintiff's Solicitors that as
the plaintiff was a firm carrying on business at Singapore, an objection would
be taken on behalf of the defendant at the hearing of the suit that the suit as
framed was null and void and not maintainable. In view of this information and
with a view to cure, if possible, the defect, as pointed out by the defendant's
Solicitor, an application was made in the name, again of Manilal and Sons, the
plaintiff, praying for substitution of the names of the individual partners of
the firm in place of the firm name. It was averred that Dahyabhai Trikambhai
Patel, Pravinbhai Dayabhai Patel, Gangaben Iswarbhai Patel, Bachubhai Manubhai
Amin and Manubhai Maganbhai Amin bad at all material times been and were still
the partners of the plaintiff firm; that the suit was intended to be instituted
on their behalf, but that they had been collectively mentioned in the firm name
and this being a mere misdescription, the plaint should be allowed to be amended
by bringing on the record the names of the individual partners. If the amendment
as prayed for be allowed, the plaintiff's name would appear thus: "Dahyabhai
Trikambhai Paid, Pravindbhai Dahyabhai Patel, Gangaben Iswarbhai Patel,
Bachubhai Manibhai Amin and Manubhai Maganbhai Amin carrying on business under
the name and style o Manilal and Sons, at No. 11A Malacca Street Singapore".
Consequential amendments in the body of the plaint by using the plural
'plaintiffs' instead of the singular were also prayed for. To these the
defendant objected the main ground of the objection being that as the provisions
of Order XXX, Rule 1. of the C. P. C. were not applicable to the case of a
foreign firm, the effect or a suit being filed by a foreign firm in the firm
name was that the suit was by an entity which had no existence in the eye of
law. It was also urged that there was no proper application even now on behalf
of the individual partners and so the application should not be allowed. It was
further urged that, in any case, the application should not be allowed as the
claims In the suit were now barred by limitation. It was further stated that Mr.
Dunderdale who signed and verified the plaint as on behalf of Manilal and Sons
bad not the proper authority to do so.

   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
fresh suit 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. In appeal against this order of dismissal it is contended before us that
the learned Judge was wrong in his view that the naming of the plaintiff as
"Manilal and Sons, a firm carrying on business at No. 11A Malacca Street,
Singapore", was not a mere misdescription. The real question is whether the
words "Manilal and Sons", as used in the plaint in describing the plaintiff,
describe however defectively or clumsily some real persons seeking the aid of
the Court to obtain some relief or whether they describe some person or thing
which does not exist in law. As I have already indicated, the argument which
found favour with the Court below is that the words, being the name of a
partnership firm, described something which is not a legal entity and which has
no legal existence and in the absence of some special provision, as provided by
Order XXX, Rule 1 of the Code of Civil Procedure in the case of partnership
firms carrying on business in India, the firm name would really be the name of
nothing existing. If this be the correct position, the necessary consequence is
that the plaint has no legal existence. What does not exist in law cannot be
amended. So if the position be, as alleged, that this is not a case of
misdescription but description of a non-existent something, the prayer for
amendment must be rejected, whether or not this prayer is made at a time when a
suit brought in the name of the individual partners would have been within time
or it would nave been beyond the time prescribed by the law of limitation. I
should myself think that if that is the position, there would not even arise the
question or withdrawal of the suit, because as recognised by the learned Judge
himself, the plaint would be a nullity.

   4. 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.

   5. Treating the question as one free from authority and to be decided on
principle, I am clearly of opinion that the words "Manilal and Sons" as used in
the plaint do describe really existing persons. Whether in Courts of law or
outside, it is well-known and well recognised that the firm name is short for
the names of several individuals who are the partners of the firm aS has been
said again and again, the firm name is a compendious mode of describing all the
partners of a firm. The Court whose aid is sought and the defendant against whom
the aid is sought know equally well that the name "Manilal and Sons" is intended
to describe some persons who really exist It is interesting in this connection
to refer to the written statement of the defendant which was filed on 21-5-1951.
The very opening words of the written statement are that "on or about 19-9-1949
it was agreed in writing between the plaintiff and the defendant as under"; then
follow words which need not be set out. In paragraphs 3. 4, 5, 9, 10 and 11
there is repeated use of the word "plaintiff", attributing to the plaintiff
various conducts and statements. The defendant does not appear to have been in
any doubt at any time about the real existence of the plaintiff and it was
nowhere suggested that the plaintiff had no existence in law.

   6. But, argues the defendant, it is well-known that a partnership firm as
opposed to a corporation is no legal entity. In other words, it is urged, it has
no legal existence and if it has no legal existence, the name of the firm has no
more effect than the name of a non-existing person or a dead person would have.

   7. In my opinion, there is no substance in this contention. It is certainly a
correct proposition of law that partnership firm is not a legal entity in the
sense a corporation or an incorporated body is a legal entity. To say this is,
however, not to say that a firm does not exist in law. A firm has a very real
existence in the combination of two or more individuals in partnership. To say
that the firm name does not describe any existing person is, therefore,
unrealistic and incorrect.

   8. This was pointed out in forceful language by Das, J. (now Chief Justice of
India) in Munshilal and Sons v. Modi Bros., 51 Cal WN 563. At p. 567 we find the
following observations:

     "It is said that a firm is not a legal entity. What is the implication of
this proposition? It is well known that there is a difference in the notions of
commercial men and lawyers respecting the nature of a firm. Commercial men look
upon a firm in the light in which lawyers look upon a Corporation, that is to
say, as a body distinct from the members composing it and having rights and
obligations distinct from those of its members. That, however, is not the legal
notion of a firm. The firm is not recognised by English lawyers as distinct from
its members".

   Then follows the significant passage:

     "It is to bring out and emphasise this legal notion of a firm that it is
said that a firm is not a legal entity. This does not mean that the law does not
recognise a firm for any purpose. It does not mean that a firm name has, in the
eye of law, no meaning or content. The firm name is a compendious mode of
describing the partners".

   I have, therefore, come to the conclusion that treating the question as one
of first principles, it should be answered by saying that the name "Manilal and
Sons" as used and described in the plaint in the suit was a defective mode of
describing the five individual partners of the firm and that this is a case of
mere misdescription.

   9. P. B. Mukharji, J. is of opinion that the only provision in law under
which the amendment prayed for could be granted was under Order 1, Rule 10 of
the Code of Civil Procedure, but he points out that those provisions do not
apply. Order 1, Rule 10 of the Code of Civil Procedure, which corresponds to the
provisions of Order 16, Rule 2 of the Rules of the Supreme Court in England,
provides that

     "where a suit has been instituted in the name of the wrong person as
plaintiff or where it is doubtful whether it has been instituted in the name of
the right plaintiff, the Court may at any stage of the suit, if satisfied that
the suit has been instituted through a bona fide mistake, and that it is
necessary for the determination of tie real matter in dispute so to do, order
any other person to be substituted or added as plaintiff upon such terms as the
Court thinks just".

   P. B. Mukharji, J., points out -- and in my opinion rightly--that before the
provisions of this rule can be applied, it must either be shown that a wrong
person has sued as a plaintiff or it is doubtful whether the suit has been
instituted in the name of the right person and this is not a case of a wrong
person suing. He points out also that there is no case of any doubt here whether
a firm not carrying on business in India can sue as a plaintiff firm. The
provisions of Order 1, Rule 10 are, in his opinion, accordingly not applicable.

   10. Even though I am unable to agree with the learned Judge with his view
that the firm name describes a legally non-existent person, I am inclined to
agree with him that where a firm name has been used to describe the plaintiff,
it is not strictly possible to say that the suit has been instituted in the name
of the wrong person, or, again, that it is doubtful if it has been substituted
in the name of the right person, what is asked for is the substitution of the
names of the individual partners in place of the firm name, it is not a case of
"any other person to be substituted or added as plaintiff."

   11. If therefore, there was no provision in law apart from Order I, Rule 10
of the Code of Civil Procedure, as P. B. Mukharji, J., seems to think, under
which the amendment could be asked for the plaintiff's prayer must fail.
Clearly, however, there are at least two provisions in the Code of Civil
Procedure under which in such a case of misdescription the defect can be removed
by the Court. Section" 153 of the Code provides that

     "the Court may at any time, and on such terms as to costs or otherwise as
it may think fit, amend any defect or error in any proceeding in a suit; and all
necessary amendments snail be made for the purpose of determining the real
question or issue raised by or depending on such proceeding."

   Order VI, Rule 17 of the Code provides that

     "the Court may at any Stage of the proceedings allow either party to alter
or amend his pleadings in such manner and on such terms as may be just, and all
such amendments shall be made as may be necessary for the purpose of determining
the real question in controversy between the parties."

   In my judgment where the name of the plaintiff or the defendant has been
misdescribed, it is necessary for the purpose of determining the real question
between the parties that such amendment should ordinarily be allowed.

   12. The question whether the use of the name of the firm or a business in
describing the plaintiff or defendant, even where this is not permitted by the
provisions of Order XXX of the Code of Civil Procedure, is a misdescription or
amounts to description of something non-existent in law has engaged the
attention of Courts in India and in England on many occasions. In our own
country one of the earliest cases appear to be the derision of Blackwell, J., in
Vyankatesh Oil Mill Co. v. N. V. Velmahomed, AIR 1928 Bom 191. The suit was
brought in the name of Vyankatesh Oil Mill Co., a firm carrying on business at
Sangli in the State of Sangli. The plaint ended with the words:

     "The Vyankatesh Oil Mill Company by Narayandas Sarvoitamdas Partner".

   A preliminary issue was framed:

     "Whether the plaintiffs were entitled to sue in the name of their firm? If
not whether the suit is maintainable."

   Blackwell, J., was of opinion that the suit had been brought by an entity
which had no legal existence in the eye of Indian Law and there being no mode of
procedure where such an entity is permitted to sue in India, the suit as framed
was not maintainable at all, because it was brought by an entity which had no
legal existence. He referred to the old case of Kasturchand Bahiravclas v.
Sagarmal Shriram, ILR 17 Bom, 413, where an objection by a defendant -- when a
suit had been brought to recover a debt by the plaintiff described as the firm
of "Kondanmal Sagarmal by its manager Sagarmal Shriram" and one person was added
as a co-plaintiff after the period of limitation -- that the whole suit was
time-barret was rejected in the view that the case was one of misdescription and
not of non-joinder. He however, was of opinion that the introduction of Order
XXX of the Code of Civil Procedure materially altered the position; and that
after the provision therein, under which certain specified firms, namely firms
carrying on business in India, can bring suits in the turn name, the position is
that other firms or a sole proprietor or Hindu joint family business, not
entitled to the benefit of Order XXX, Rule 1, are legally non-existent for the
purpose of describing the plaintiff.

   13. It is interesting to mention that in this particular case Blackwell, J.,
did allow an amendment on terms, but treated it as an amendment not following
upon a misdescription, but on application for the substitution as plaintiffs of
individual persons for a legally non-existent person. As already indicated, my
own view is that it the correct position is that the plaint is brought by
legally non-existent person, the plaint is a nullity and there should be no
question of amendment at all. For myself I am unable to see how the introduction
of Order XXX, Rule 1, can change the legal position. Before that Order, which
permitted certain firms to bring a suit in the firm name, all firms, whether
carrying on business in India or otherwise, were in the same position. That
position was that the firm name was a compendious made of describing all the
partners, but such a description of the plaintiff in that name would be a
defective description which could be corrected. When the position was altered as
regards firms carrying on business in India by the provision of Order XXX, Rule
1, all that happened was that such a description would not be a defective
description in the case of such firms, but would continue to be a defective
description in the case of other firms. That could not, in my opinion, change
the position that it did describe something really existing, though defectively.

   14. In this Court Buckland, J., followed the decision of Vyankatesh Oil Mills
Co., AIR 1928 Bom 391, in Neogi Ghose and Co. v. Sardar Nehal Singh . He did not
add any reasons of his own. but

   said that he entirely agreed with the view of Blackwell, J., that the suit
was badly framed from the outset and that the plaintiffs were an entity not
recognised by law. He also, it is worth noting, allowed the amendment, treating
it as an amendment not following upon a mere misdescription, but as an
application for substitution as plaintiffs of individual persons who composed
the entity which the law did not recognise.

   15. In Amrik Singh v. Sant Singh, AIR 1936 Lah 485, the Lahore High Court had
to consider an argument that four partnership firms named as defendants really
amounted to a misdescription of individual partners. The Court rejected the
argument and mentioned as one of its grounds that the firms never carried on
business in British India. Another reason that was given in that case was that
the facts of that particular case were that the firms had been dissolved before
the suit had been brought. So it was held that this was not a case where any
defendants had been named. It appears to me that this additional circumstance
that the firms had already been dissolved would be sufficient basis for the
actual decision in that case.

   16. Vyankatesh Oil Mill Co.'s case AIR 1928 Bom 191 and Neogi Ghose and Co.'s
case were followed by the Sind Chief Court in Mangharam Rupchand, Firm v. Haji
Sorik Punhoo, AIR 1939 Sind 172.

   17. A different note was struck by Page, J., in the early case of Sheodoyal
Khemka v. Johurmull Manmull . Defendant No. 1 as described in the plaint was
Joharmull Manmull, mentioned as a firm. Objection was taken that there was no
such firm as Joharmull Manmull and the suit had been wrongly constituted,
because two members of the partnership firm Nathuram Ramkrissen, namely,
Joharmull Khemka and Manmull Khemka were not parties to the suit. Page, J.,
agreed that Joharmull Manmull did not constitute a partnership firm, but that
they were individual members of the partnership, Nathuram Ramkissen, He was,
however, of opinion that when the plaint described defendant No. 1 as Joharmull
Manmull, it was a sufficient description of two defendants, Joharmull Khemka and
Manmull Khemka. He did not think any amendment substituting in place of
Joharmull Manmull the names of these two persons, Joharmull Khemka and Manmull
Khemka, was necessary, but stated that

     "if an application were made to amend the plaint so as to substitute for
Joharmull and Manmull the words Joharmull Khemka and Manmull Khemka', such an
amendment would not be an amendment by which a new party was added, but it would
be an amendment merely for the purpose of more clearly describing parties who
are already before the Court."

   In Amulakchand v. Babulal, AIR 1933 Bom 304, Beaumont C. J. and Rangnekar J.
refused to follow the Vyakantesh Oil Mills case, AIR 1928 Born 191 and gave
leave to amend the plaint, by substituting in place of "Amulakchand Mewaram, a
firm of merchants carrying on business at ......-" the names of the three
members of the joint family, where business was carried on in that name.
Beaumont C. J. pointed out that this was a case of misdescription of existing
persons.

   18. The Madras High Court had to consider this question in a very recent
decision in Mohideen v. V.O.A. Mohomed, (S) . The suit had been instituted for
the recovery of a sum of money by the plaintiffs describing themselves as "V. O.
A, Alliar and Sons through one of the partners V. O. A. Mohamed." On the 5th
September, 1945, when a fresh suit for this relief would have been barred by
limitation, an application was made to amend the plaint by the substitution of
the names of three partners of the firm "V. O. A. Alliar and Sons" in place and
stead of the name of the firm. The application was allowed and the plaint was
amended and a decree followed. In the appeal before the High Court the question
was raised that the suit was barred by limitation as the plaintiff in the suit
as originally instituted was a non-existing person and the plaint became
effective only when the three partners were brought on the record as plaintiffs
in December, 1945. After an exhaustive consideration of the many cases in which
the question had been considered, the learned Judges of the Madras High Court
recorded their conclusion in these words:

     "To sum up, the situation Is analogous to a case where an individual who
has an alias or an abbreviated name by which he is sometimes called initially
describes himself in that name but subsequently applies to have it rectified so
as to describe in the manner in which he is most usually known. There cannot be
any doubt that by the correction in the name a new plaintiff is not added so as
to attract Section 22(1), Limitation Act. A trade name either of a person or a
group of individuals carrying on business in partnership is in truth, an alias
for the person or the group."

   The Court accordingly rejected the objection on the ground of limitation.

   19. In several cases, of which I think it is sufficient to mention three
only, the Courts in England had to consider the question now before us, namely,
whether the description of a plaintiff Or a defendant firm, when this is not
provided for in the Rules, is a mere misdescription which can be corrected by
substitution of the individual members of the firm or the name of the proprietor
of the business or is analogous to a case where the plaintiff or the defendant
is a non-existent person. In Alexander Mountain and Co. v. Rumere, Ltd., (1948)
2 K.B. 436 the name of the plaintiff appeared originally in the writ as
"Alexander Mountain and CO. (suing as a firm)". Alexander Mountain had died
before the date on which the writ was issued and at the relevant time his widow,
Doris Mountain, was carrying on the business in the name of Alexander Mountain
and Co, This was not permitted by the provisions of Order 48(a), Rule I of the
Supreme Court Rules, as that rule does not allow a single person to sue in the
name of a firm. An application was made for amendment of the writ by
substituting tot the description of the plaintiffs, as originally appearing, the
words "Doris Mountain, executrix of Alexander Mountain deceased." The
application was rejected by Lord Goddard C. J., he being of opinion, that he had
no jurisdiction to make the amendments this was analogous to a case where an
action had been commenced in the name of a dead man. On appeal the Court of
Appeal unanimously held that the amendment should be allowed and that the case
was one of mere misnomer. It was pointed out that since Section 11 of the Civil
Procedure Act, 1833, abolished pleas in abatement for misnomer, it gave the
defendant the right, instead of pleading in abatement, "to cause the declaration
to be amended at the cost of the plaintiff, by inserting the right name upon a
judges summons founded on an affidavit of the right name." That Act had also
been repealed, but under the provisions of Order 72, Rule 2, the old practice
would remain in force and the defendant by summons, supported by affidavit,
could compel the plaintiff to amend. In these circumstances, the learned Judges
thought that when the plaintiff asked for the amendment, the case should be
treated as one of misnomer and the plaintiff should be allowed on terms to make
the amendment.

   20. In Belgian Economic Mission v. A. P. and E. Singler, Ltd., 1950 WN 418,
the suit was originally brought in the name of "Belgian Economic Mission",
described as plaintiff. An amendment was asked for by substituting as plaintiffs
"Paul Van Zeeland in his capacity as Ministre' des Affaires Etrangeres et du
Commerce Exterieur suing on behalf of the Kingdom of Belgium." The question
arose whether such an amendment could be allowed. There could be no difficulty
if this was a mere case of misnomer, for the correct description could he
allowed to be made under the provisions of Order 72, Rule 2. The amendment was
allowed by Devlin, J., and on appeal that decision was affirmed by the Appeal
Court, who held that the Belgian Economic Mission were merely the agents through
which the Belgian State was making the contract and that the signatories were
signing on behalf of the Belgian State and, consequently, there could not be any
doubt that when they issued the writ the plaintiffs" solicitors thought that
they were issuing it on behalf of the Belgian State. Accordingly, they held that
this was a case of a misnomer and, as Cohen, L. J., pointed out, under the
existing practice because of Order 72, Rule 2 there was power to allow in a
proper case an amendment by substituting the correct description of the
plaintiff.

   21. The last case that requires to be noticed is Etablissement Baudelot v. R.
S. Graham and Co. Ltd. (1933) 2 Q. B. 271. In the writ as originally issued the
plaintiffs were described as "Etablissement Baudeiot", and at the end of the
back of the writ there was an endorsement that the writ was being issued by the
solicitors for the plaintiffs a company incorporated according to the laws of
France. The actual position was that it was not an incorporated body The
defendants contended at the outset of the trial that the name of plaintiffs on
the writ and all subsequent proceedings should be struck out and the action
dismissed on the ground that the plaintiff was a non-existent person being
described as a body corporate- Sellers, J., however, allowed the amendment of
the plaint as prayed for by the plaintiffs by adding to the name 'Etablissement
Baudelot' the names of the three persons who were carrying on this trading
concern. On appeal, all the Judges agreed with the view taken by Sellers, J. All
the Judges were of opinion that this was a mere case of misdescription which
could be corrected and was not a case of a writ having been issued in the name
of a non-existent person or body. It may be noticed here that while Birket, L.
J., said that the provisions of R. S. C., Order 72, Rule 2 were quite sufficient
to enable the Court to deal with such a situation, Singleton L. J., who also
referred to Order 72, Rule 2, stated that the amendment could be allowed under
the provisions of Order 16, Rule 2 of these Rules. As already stated, Order 16,
Rule 2 of the Rules of the Supreme Court corresponds to Order I, Rule 10, of our
Civil Procedure Code.

   22. A consideration of these authorities fortifies me in my view that the
description of a plain-tiff by a firm name in a case where the Code of Civil
Procedure does not permit a suit to be brought in the firm name should properly
be considered a case of description of the individual partners of the business
and, as such, a misdescription, which in law can be corrected and should not be
considered to amount to a description of a non-existent person.

   23. Once this conclusion is reached, the objection on the ground of
limitation disappears. As I, have already stated, though, I am inclined to agree
with P. B. Mukharji J., that the words of O. I, R. 10 of the Code of Civil
Procedure are not wide enough to provide for an amendment of this nature,
Section 153 and Order VI, R. 17 of the same Code give ample power to the Court
to allow such amendment by substituting the names of the individual members in
the plaint.

   24. It does not appear that the objection that has been taken in the
affidavit-in-opposition as regards the insufficiency of the power of attorney in
favour of Mr. Dunderdale was pressed before the learned Judge.

   25. Mr. Dutt, however, drew our attention to the copy of the power of
attorney as appearing in the paper book and wanted to convince us that this
power of attorney did not authorise Mr. Dunderdale to act on behalf of the
plaintiff firm, far less the individual members of the firm. Reading the
document as a whole, I am of opinion that this contention should not succeed and
that it does authorise Mr. Dunderdale to

     "appear for and represent the firm in any Court in the jurisdiction Civil
Criminal Insolvency Original Appellate or otherwise and before any Official in
any suits proceedings or matters and to make sign verify present and file any
Plaints, Statements, Applications, Petitions" etc.

   26. There is, therefore, no substance in the objection that there was not a
proper power of attorney in favour of Mr. Dunderdale.

   27. As I have already stated, the application itself has been made in the
name of Manilal and Sons and not in the name of individual partners. The learned
Judge being of the view that such a plaint was legally a nullity, thought that
such an application could not also be made. For the reasons I have already
given, I am of opinion that such a plaint should be considered to be in effect
brought in the name of the individual partners. I do not think the fact that the
application has been made in the name of Manilal and Sons, is a ground for which
the prayer for amendment should not be granted.

   28. One matter which was not raised in the affidavit of objection, but was
considered by us, was the question of the warrant of attorney. It appeared to us
desirable that when the individual partners wished to be brought on the record
as the real plaintiffs, the warrant of attorney should also be on their behalf
as individual partners. It may be mentioned that two warrants of attorney, one
executed by four of the individual partners and the other by the fifth partner,
have been filed in Court. It may be pointed out that on the authority of the
decision of a Full Bench of the Allahabad High Court in Wali Muhammad Khan v.
Ishaq Ali Khan, I. L. R. 54 All 57: (AIR 1931 All 507), the defect, in the
absence of a warrant of attorney having been filed earlier, should be considered
a mere irregularity which can be cured. The filing of the fresh warrants of
attorney executed by five partners have, in my opinion, cured the defect.

   29. It appears that after the application for amendment was rejected, the
learned Judge made an order dismissing the suit. Against that decision Appeal
No. 138 of 1957 was preferred. That appeal has been heard and disposed of by us
this day. We have allowed the appeal and set aside the order of dismissal.

   30. For the reasons already mentioned, I would allow this appeal, set aside
the order of the learned Judge and make an order for amendment as prayed for.

   31. In view, however of the fact that the partners of the firm and their
advisers have been guilty of gross negligence, I think it proper that the
appellants should pay to the respondents all the costs up to date, including the
costs of the application and of the hearing of the suit as also the costs in
this Court".

   32. It is further proper that the order for amendment should be made
conditional on the payment of a portion of these costs as indicated below:

   I would, therefore, order that the order be made in terms of prayers (1) and
(2) in the Master's Summons, dated 31st January, 1957, on condition that a sum
of Rs. 5,000/- he paid by the appellants to the respondent's Solicitor on
account of costs up to date both in the trial Court and this Court.

   33-34. The individual partners are also permitted to sign the plaint either
themselves or through their constituted attorney.

   35. The payment of the sum of Rs. 500/- as mentioned above would be subject
to mulual undertaking as to taxation and refund.

   36. In default of the payment of this sum of Rs 5000/- by the 5th of January,
1959, this appeal will stand dismissed with costs.

   37. Certified for two Counsel.

   Bachawat, J.

   38. The suit was instituted in the name of Manilal and Sons, a firm carrying
on business In Singapore. The firm name of Manilal and Sons is the collective
trade name of the several individuals carrying on business in co-partnership
under that name. Those individuals trade and enter into contracts and dealings
in the firm name of Manilal and Sons. But it so happens that a firm is not a
separate juristic entity and Order XXX of the Code of Civil Procedure does not
enable the partners of Manilal and Sons to sue in the firm name as [he firm
carries on business outside India. There is, however no doubt that the suit was
instituted by and on behalf of several persons who then constituted the firm of
Manilal and Sons.

   39. Ordinarily, a person must sue or be sued in his name. Order VII Rule 1 of
the Code of Civil Procedure enjoins that the plaint shall contain the name and
description of the plaintiff as also the name and description of the defendants
so far as they can be ascertained. In certain cases Order XXX of the Code of
Civil Procedure permits a suit by or against a person or persons in a name or
style other than his or their own name or names. Suppose a suit is instituted by
a single individual or by or against members' of a Hindu joint family or the
partners of a firm carrying on business Outside India, Order XXX of the Code of
Civil Procedure does not enable the institution of such a suit, but that Order
in no way fetters the court's power of amendment. Unless amendment is allowed,
such a suit is, however, bound to fail. The court has power to treat the name so
used as a misdescription or misnomer of the real party who has sued or is being
sued and to regard the use of the name as an error or defect in the proceedings.
Whether or not, there is misdescription or misnomer is a question of fact. The
court must be satisfied that the name on the record was, in fact, used for the
purpose of impleading the party whose correct name is later sought to be
substituted. On being so satisfied, the court has ample power to allow the error
or defect to be cured under Section 153 of the C. P. C. and to allow
consequential amendment of the pleadings under Order VI Rule 17 of the C. P. C.
Whether the power should be exercised in a given case depends upon the facts of
that case. Where the court regards the name on the record as a misdescription,
the court, in effect, finds that the person who is so misdescribed is already on
the record. If on such a finding the court allows the amendment by introducing
the legitimate name of that person, the court is not adding a new party for the
purposes of Section 22 of the Indian Limitation Act nor is it taking away from
the defendant any defence accrued by lapse of time.

   40. This power of amendment is in no way taken away by the fact that the name
on the record is not the name of any individual or any separate juristic entity
known to law. Because the name on the record is not the name of any known legal
entity or because the name is a trade name in which the party is not entitled to
sue, it does not follow that the suit is on behalf of a non-existing or
fictitious person. Such a name, on the facts of the case, may well be a
misdescription of some real party who is suing or being sued,

   41. In (1953) 2 Q. B. 271 Establissement Baudelot suing as plaintiff and
described on the back of the writ as a company incorporated according to the
laws of France was not, in fact, an incorporated company but was the collective
trade name of three individuals trading in France. In 1950 W. N. 418 the Belgian
Economic Mission suing as plaintiff did not exist either as a corporation or as
a firm and was the name of the agency for the real plaintiff the Belgian State.
In AIR 1933 Bom 304 Amulakchand Mewaram suing as plaintiff was the name of the
business of a Hindu joint family which is not a known legal entity and a suit in
that name was not authorised by the Code. Yet, all these cases were treated as
cases of misdescription or misnomer and amendments were allowed in the interests
of justice by adding the name of the real party.

   42. Where however a plaint is presented in the name of a dead person in the
mistaken belief that he is alive, so that the dead person is intended to be the
plaintiff, it has been held that there can be no amendment of the pleadings nor
addition of parties for there is no suit in the eye of law in which such
proceedings may be had. It was so held in the case of Tetlow v. Orela Ltd.
(1920) 2 Ch. 24. This case is to be contrasted with the case of (1948) 2 KB 436
where the name Alexander Mountain and Co., a firm, was treated as a
misdescription of the person entitled to the business of Alexandar Mountain and
Co. and therefore, a misnomer of Doris Mountain, Executrix of Alexander
Mountain, who carried on business in that name on the date of the issue of the
writ, though the Solicitors issuing the writ were under the impression that she
and another person carried on business as co-partners under that name and though
the suit was in respect of a matter arising during the lifetime of Alexander
Mountain who also carried on business under the name of Alexander Mountain and
Co.

   43. The substitution of the name of the real party does not amount to an
addition of a new party for the purposes of limitation. (Sec the case of (S) and
the case of Municipal Commissioners of D'acca v. Gangamani Choudhurani . In the
later case Rau J., notices a long line of cases both of this Court and of other
courts on this question.

   44. In , the Court even without any amendment of the pleadings treated a suit
against Joharmull Manmull, a firm, as a suit against the individuals Joharmull
and Manmull though there was no firm of the name of Joharmull Manmull in
existence.

   45. In each case the question is who is the real party suing or being sued.
In M. B. Sarkar and Sons v. Powell and Co., 60 Cal WN 840: the Court refused to
treat the name of M. B. Sarkar and Sons a firm, as a misdescription of M. B.
Sarkar and Sons, a company incorporated under the Indian Companies Act, on the
finding that on the facts of that case and in view of the allegation made in the
plaint, it was not open to the plaintiff to contend that it intended to implead
anybody other than the firm of M. B. Sarkar and Sons.

   46. In the case of AIR 1928 Bom 191 and in the case, of the court look a
harsh view of the matter in not

   treating the cases before them as cases of misdescription and in my opinion
these cases ought not to be followed,

   47. The principle upon which amendment should be granted or refused in such
cases is well stated by Beaumont C. T. in the case of AIR 1933 Born 304 with
whose judgment I respectfully agree.

   48. The Courts in (1948) 2 KB 436 and fn 1950 WN 418 and Birkett L. J. in
(1953) 2 QB 271, thought that the power of amendment in such cases is derived
from the old power of the Court to correct a misnomer existing in 1883 and
preserved by Order 72. Rule 2 of the Rules of the Supreme Court; whereas
Singleton L. J. in (1953) 2 OB 271 and Rajagopala Ayyangar, J. in (S) thought
that the Court had power to make the amendment under R. S. C. Order 16, R. 2 and
the corresponding Order I, Rule 10 of the Code of Civil Procedure. I prefer to
rest this power of the Court upon the general power to amend contained in
Section 153 of the Code of Civil Procedure and the power to amend the pleadings
contained in Order VI, Rule 17 of the Code of Civil Procedure.

   49. My conclusion in this case is that the name of Manilal and Sons is a
misdescription of the several persons who constituted the firm of Manilal and
Sons on the date when the suit was instituted. Those partners could not sue in
the name of Manila] and Sons. There is an error or defect in the proceedings.
The Court has power to allow amendment of the defect and of the pleadings. On
the facts of this case the amendment should be allowed. His Lordship, P. B.
Mukharji. J., thought that, in the circumstances of this case, he had no power
at all to allow the amendment. He, therefore, did not at all consider the
question whether assuming that he had the power, the facts of the case warranted
the exercise of such power.

   50. The use of the name of Manilal and Sons in the ancillary proceedings and
in the present application may also be treated as an irregularity and a case of
misdescription and I so treat it.

   51. The case of ILR 54 All 57: (AIR 1931 All 507) (FB) shows that the
misdescription of the plaintiff and any consequent defects in the signature,
verification and presentation of the plaint may be treated as technical defects
or irregularities of procedure and I so treat such defects, if any, in this
case.

   52. In the circumstances of this case, I concur in the order proposed by my
Lord.