Lawrence Jenkins, K.C.I.E., C.J.
1. The principal question in this appeal is as to the power of the Court to receive this suit. The plaintiffs are Messrs. Gordhandas Khatao and Mulraj Khatao and Mr. N.C. Macleod the Official Assignee and Assignee of the estate and effects of certain traders, who until recently carried on business under the name and style of Vishram Ebrahim & Co.
2. The defendants are described in the heading to the plaint as " The firm or partnership of Shaw Wallace & Co. as it was constituted on the 13th September 1898 and the partners in the said firm on that date. "
3. According to the allegations in the plaint the first and second plaintiffs and Vishram Ebrahim & Co. on the 22nd August 1898 entered into an agreement with the defendants, Shaw Wallace & Co., who committed a breach of the agreement entitling the plaintiffs to sue them in respect thereof. In the 16th para of the plaint it is alleged, the defendants carry on business in Bombay. Part of the cause of action arose in Bombay.
4. The plaint was admitted on the 21st November 1904, the leave of the Court having first been obtained under Clause 12 of the Letters Patent.
5. Prior to the service of summons and pursuant to a Chamber order of the 22nd December 1904 the plaint was on the 7th of January 1905 amended by the addition of the names of Messrs. Wallace, Ashton, Greenway, Hue and Meaking. The first four are in the amendment as formerly carrying on business with Edmund von Schmidt Secherau (now deceased) under the style or firm of Shaw Wallace and Co. and Mr. Meaking is described as the executor of Mr. Secherau. It is common ground before us that the partners at that date were the first four of these persons and Mr. Secherau who has since died leaving as his executor the defendant, Mr. Meaking, and that at the institution of the suit the first four named together with another person were carrying on business as co-partners within the Original Jurisdiction of this Court, under the name of Shaw Wallace & Co.
6. In these circumstances it is urged that leave should not have been granted under Clause 12 of the Letters Patent that the order allowing the amendment was wrong, and that the Court had no jurisdiction to receive the suit.
7. The propriety of the leave need not be considered, if it was unnecessary, and, apart from it the Court had jurisdiction to receive the suit.
8. Until the recent rules of this Court came into operation a plaintiff was not allowed to sue partners in their firm name on the Original Side of the Court.
9. It is however now provided by Rule 361 that:
Any two or more persons claiming or being liable as co-partners and carrying on business within the jurisdiction may sue or be sued in the name of the respective firm, if any, of which such persons were co-partners at the time of the accruing of the cause of action; and any party to a suit may in such case apply by summons to a Judge for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, co-partners in any such firm, to he furnished in such manner, and verified on oath or other wise as the Judge may direct.
10. But Messrs. Wallace, Ashton, Greenway and Hue are, according to the allegations in the plaint, liable as co-partners to the plaintiffs and none the less would they be so because the estate of their deceased co-partner may also be liable together with them. It is also stated that they are carrying on business within the jurisdiction, and this would be so though there may be associated with them a partner who was not a member of the firm when Shaw Wallace and Co. entered into the agreement on which the suit is based. The case, therefore, in my opinion falls within Rule 361. This rule, however, does not extend the jurisdiction of the Court: it merely sanctions the use of the firm name as a convenient description of its several members and exempts a plaintiff from the obligation of setting forth their names at length.
11. For the purpose therefore of determining the Court's jurisdiction the suit must be treated as though the names of the partners had been set forth in the heading to the plaint.
12. Now had Messrs. Wallace, Ashton, Greenway and Hue been actually named as defendants in the first instance, then as against them the plaint could have been admitted without leave under Clause 12 of the Letters Patent, having regard to the first allegation in para 16 of the plaint. And these four persons are the only members of the old firm who could be sued under the firm name, seeing that their other partner, Mr. Secherau, was dead and so was not carrying on business at the date of the suit. Therefore the suit as originally framed was, in my opinion, rightly received irrespective of leave under Clause 12 of the Letters Patent, and the appellants' contention that the Court had no jurisdiction fails.
13. This brings me to the exception taken to the order of the 22nd December 1904. So far as it sanctioned the addition of Mr. Meaking's name it was I think beyond the powers of the Prothonotary. Mr. Meaking was not a party to the suit at its admission, and even if leave subsequent to the admission of a plaint can be given under Clause 12 of the Letters Patent-as to which I say nothing-I am clearly of opinion that leave could not be given by the Prothonotary. Mr. Meaking therefore as the executor of Mr. Secherau has wrongly been added as a defendant Mr. Davar at the close of the judgment under appeal stated that he was willing to have him dismissed from the suit and a similar statement has been, made before us. Mr. Meaking's name therefore must be struck out unless the defendants desire that it be retained. As to the other defendants the amendment was useless if they already were parties: if they were not then the amendment should not have been made except by an order of a Judge seeing that leave had been obtained under Clause 12 of the Letters Patent.
14. The last part of the Rule 361 shows the proper procedure to be followed.
15. The order under appeal must therefore be varied by directing that the amendment consequent on the order of the 22nd December 1904 be struck out, but in other respects it will be confirmed. The plaintiffs' costs of this appeal must be borne by the first four defendants, but at the defendants' Counsel's request this will be without prejudice to any claim by those defendants to recover from the fifth defendant or the estate of Mr. Sechcrati. The plaintiffs undertake that they will not oppose any application made within two months of this date to add Mr. Meaking as a party. In case he is not added as a party to this suit the plaintiffs must pay his costs up to this date. If he is added then those costs will be reserved.