Mura Mohideen vs V.O.A. Mohomed And Ors. on 3 November, 1954

    Mura Mohideen vs V.O.A. Mohomed And Ors. on 3/11/1954

JUDGMENT

   Rajagopala Ayyangar, J.

   1. This is an appeal against the Judgment of Balakrishna Aiyar J. in s. A.
No. 57 of 1947 filed by reason of the leave granted by the learned Judge under
Clause 15 of the Letters Patent.

   2. The appellants in this Letters Patent appeal were the defendants in the
suit O. S. No. 497 of 1944 on the file of the District Munsif's Court of
Tinnevelly filed by the respondents for the recovery Of the value of articles
supplied to the defendants between 27-10-1941 and 19-1-1842. The plaintiffs were
the partners of a firm which was carrying on business in Burma under the trade
name of "V. O. A. Alliar and Sons" which was registered under the law for the
registration of partnerships in force in Burma. It was with this firm that the
defendants-appellants had dealings as a result of which a sum of Rs. 1657-9-0
became due to the plaintiff-firm. When Burma was overrun by the Japanese both
the partners of the firm "V. O. A. Alliar and Sons" as well as defendants-
appellants came over to their native places in Madras State. On 26-10-1944 a
suit was instituted for the recovery of this sum by the respondents in the name
of "V. O. A. Alliar and Sons" through ode of the partners "V. O. A. Mohamed."

   When notice was served upon the defendants they objected to the
maintainability of this suit because under - the terms of Order 30, B. 1, Civil
P. C., it is only the firm carrying on business in India that could take
advantage of the provisions of this order. As the plaintiffs were admittedly
carrying on business only in Burma the defendants objected that the suit as
framed did not lie. In view of this objection an application I. A. No. 1037 of
1945 was filed on 5-9-1945 to amend the plaint by the substitution of the names
of the three partners of the firm "V.O.A. Alliar and Sons" in the place and
instead of the name of the firm. This application was allowed by the learned
District Munsif and the plaint. was amended as prayed for in December 1945.

   Out of the defences raised to the suit the only one that remains is that of
limitation. .The point raised was that the plaintiff in the suit as ori-ginally
instituted was a non-existing person or entity, that the plaint became effective
only when three partners were brought on record as plaintiffs in December 1945
and that by this date the claim was barred by limitation. It will be seen that
this raises for consideration the question as to whether Section 22, Limitation
Act applied so as to render the impleading of the three partners a substitution
or addition of a new plaintiff within the meaning of that section. The learned
District Munsif held that there was no addition or substitution of a new
plaintiff but there was merely a correction of a misdescrip-tion and on this
ground held the suit to be in time; and a decree was passed in favour of the
plaintiffs.

   3. The defendants took the matter on appeal to the District Court of
Tinnevelly in A. S. No. 101 of 1946 and the learned District Judge differing
from the trial Court held th'at the suit was out of time. The plaintiffs filed a
second appeal to this Court in S. A. No. 57 of 1947 which came on for hearing
before Balakrishna Aiyar J. and the learned Judge reversed the decision of the
learned District Judge by holding the suit was in time and granted a decree to
the plaintiffs. In view however of the conflict in the authorities which was
noticed in his judgment, the learned Judge granted leave to appeal from his
judgment in pursuance of which this Letters Patent appeal is filed.

   4. Having considered the numerous authori-ties that there are on the point we
are clearly og the opinion, that the learned Judge is right in his view that
Section 22, Limitation Act is not attracted to the present case. We are
fortified in this conclusion by reference to certain English decisions to which
we shall be adverting in our discussion of the matter.'

   5. The sole question for consideration in this case is whether by reason of
the amendment above referred to a new party is brought on record. If it is,
Section 22, Limitation Act is attracted and the plaint must be treated as having
"been instituted on the date when by reason of the amendment he was made a
party. If on the other hand the proper view to take of the amendment is that the
party who was subsequently impleaded was even at the inception intended to be
the plaintiff but that by reason either of misnomer or misdescription he was
imperfectly indicated the correction of this mistake would not introduce a party
but would . merely describe properly that individual who always intended to
assert his rights in the suit

   6. The earliest case on the point to which it is necessary to refer is a
decision of the Bombay High Court reported in -- 'Kasturchand v. Sagarmal', 17
413 (A). This case was decided in 1892 before Order 30 had been introduced in
the Civil P. C., at a time wnen any suit by a partnership had to be property
brought only in the names of the partners of the firm. It arose out of a suit to
recover a debt due to the firm of Kondammal Sagarmal and the plaintiff was
originally described as "the firm of Kondammal Sagarmal by its manager
Sagarmal". The firm of Kondammal Sagarmal was composed of Sagar-mal Shrlram and
one Malamchand. The deten- . dants, objected to the frame of the action on the
ground that Malamchand had not been indicated in the plaint as a plaintiff. The
Subordinate Judge upholding the objections of the defendants dismissed the suit
without going into the merits of the case on the ground that all the plaintiffs
were not properly described in the plaint.

   On appeal the District Judge reversed the decree and ordered a remand being
of the opinion that if Sagarmal was not entitled to sue for the firm, Malamchand
should, be added as a party and the suit proceeded with. There was an appeal to
the High Court from this Order of remand which was dismissed. Subsequently
Malamchand was added as a co-plaintiff and the suit proceeded on the merits, the
defendants raising the contehtion that the suit was time barred on the date of
the addition. The suit was decreed, the objection of the defendants based on
Section 22, Limitation Act being overruled. Candy J. dismissed the second appeal
stating that "the present was a case of misdescription not of nonjoinder".

   This 'decision was followed in this Court by Seshagiri Aiyar J. in. a case
reported in - 'Mar-ayya Chetti v. Sami Chetti', AIR 1916 Mad 649 (1) (B),
decided in 1915. There was a. sum of money due upon dealings to the plaintiff-
firm and the suit was filed by one ot the partners, prefixing the initials of
the firm to his own name. The defendant contested the suit upon the ground that
the suit was bad for non-joinder of the other partners. The District Munsif
dismissed the suit holding that if the other partners were added as they ought
to be the suit would become barred under Section 22, Limitation Act. Against
this dismissal the plaintiff preferred a revision petition under Section25,
Small Cause Courts Act. The revision petition was allowed, the learned Judge
stating

     "I must regard the suit as one brought on behalf Of the firm by one of its
members as its agent. In this view, I cannot agree with the District Munsif in
the conclusion that if other, partners are added as co-plaintiffs the suit will
be barred by limitation."

   Reference was then made to 17 Bom 413 (A), which was followed. A similar
decision was rendered by Page J. in a case reported in - 'Seo-doyal Khemka' v.
Joharmull Manmull', AIR 1924 Cal 74 (C). Dealing with the objection as raised In
the present case the learned Judge said at pp. 77, 78:

     "The firm is an entity; it is merely a collective name for the individuals
who are members of the partnership. It is neither a legal entity nor is it a
person..... A firm name, in truth, is merely a description of the individuals
who compose the firm. It is that, and it is nothing more."

   Based on this" reasoning the learned Judge held that, if an amendment were
effected by which the names of the individual partners were set out in a plaint
replacing the firm name no new party would be added but it would be an amend-
ment merely for the. purpose of more clearly describing the parties who are
already before the Court. The matter came Up again in Bombay and was the subject
of a decision reported in - 'Ramprasad v. Shrinivas', AIR 1925 Bom 521 (D). A
suit was instituted by the plaintiff against the defendants described as
"Shivlal Ramprasad . a firm doing business as merchants at Ahmeda- bad." After
the institution of the suit it was discovered that Shivlal Ramprasad was not a
partnership but was merely a name in which a Hindu joint family was doing
business and to which obviously the provisions of p. 30, Civil P. C. would not
apply. An application was then made for amending the description of the deien-
dants by substituting the names ot the members of the family for the original
description of "Shivlai Ramprasad". The defendants then rais ed an objection
based on Section 22, Limitation Act. Macleod C. J. and Coyajee J. affirmed the
deci sion of the learned trial Judge who. held that the amendment corrected the
misdescription and there was no addition of a new party.

   7. The authorities upto this stage are all in One way so far as this topic is
concerned. But a departure was made in a decision rendered by Blackwell J. in -
'Vyankatesh Oil Mill Co. v. Velmahomed', AIR 1928 Bom 191 (E). The ori ginal
plaintiffs were described as the Vyankatesh Oil Mill Co. They were carrying on
business at Sangali outside British India and the suit was on dealings had by
this firm with the defendants. The defendants raised an objection to the frame
of the action since on the terms of Order 30, Rule 1, Civil P. C. it was only
the firm carrying on busi ness in British India that was entitled to avail
itself of the provisions enacted by this order. The. plaintiffs thereupon
applied for leave to amend the plaint by substituting the names of the indi
vidual partners for that of the plaint firm under O l, Rule 10, Civil P. C. and
in the amendment petition a prayer was added that the amendment should be
treated as following upon :a mlsdescrip- tion of the plaintiff and not a
substitution of the: plaintiffs.

   The learned Judge ruled that the amendment. asked for could not be treated as
an amendment. following upon a mere misdescription and must be treated as an
application for the substitution as plaintiffs of the individual persons who com
posed an entity which the law did not recognise. Apparently there was no
question of the suit being barred by limitation on the date of the amendment and
the learned Judge allowed it on certain terms as to costs to which it is unneces
sary to refer. The decision in 17 Bora 413 (A) was distinguished by the learned
Judge as a case, which was-decided previous to the enactment of O. 30, Civil P.
C.

   The decion in AIR 1924 Cal 74 (C) wa not referred to and that in AIR 1925 Bom
527 (D) was distinguished as a case relating to a joint family and also on the
ground that it Had relied upon the decision in 17 Bom "413 (A), which was
inapplicable after the amendment of the Civil P, C. With great respect to the
learned Judge we are unable to perceive how far the present enactment of Order
30, Rule 1 makes any difference for the decision. The provision is an enabling
one. If a firm satisfies its conditions it is entitled to utilise this
machinery. The fact however that Order 30, Rule 1 is inapplicable to a
"particular case does not by itself render the designation of Individual
partners .an addition of new parties merely because Order 30 is inappli-cable to
a suit by these individuals.

   In our opinion the correct position in. law is that which is to be found in
the observations of Page J. in the decision reported in AIR 1924 Cal 7.4 (C),
which we have already extracted. Wo are unable to agree with Blackwell J. in his
view that a foreign firm not being a legal entity which could as such file a
suit under the Civil P. C., by itself determines the question whether the im-
pleading of the members of that firm is the addition of a new party. The view of
Blackwell J. appears to have been concurred in by two decisions reported in -
'Neogi Ghose and Co. v. Nehall Singh.', AIR 1931 Cal 770 (P) and - L. N.
Chettiar Firm v. M. P. Rule M. Firm', AIR 1935 Rang 240 (G), but we are unable
to agree with the soundness of the reasoning in these decisions either of which
do not furnish any further reasons in support of the view of Black-well J.

   8. On the other hand, there is a decision of the Bombay High Court reported
in - 'Amulak-chand v, Babulal', AIR 1933 Bom 304 (H), Where Beaumont C. J. and
Rangnekar J. in effect dissented from the decision of Blackwell J. in - 'AIR
1928 Bom 191 (E). The learned Chief Justice followed the decision in - '17 Bom
413 (A)', Dealing with the view of Blackwell J. that the introduction of Order
30 into the Civil P. C. of 1908 rendered 17 Bom 413 (A) inapplicable to cases
arising thereafter the learned Chief Justice said (at p. 305):

     "But I do not see how Order 30 can affect the question of fact whether a
suit brought in the name oE a firm in a case not within Order 30 is in. fact a
case of misdescription of existing persons or 'a case of a suit brought by a
nonexistent entity. That question, as I say, is one of fact, and in the present
case it is proved on the evidence that the firm in .whose name the suit was
originally brought does not describe certain existing persons."

   We regard this as the correct view to take of the provision in Order 1, R, 10
read with Order 30, Civil P. C. There are a few later decisions but it is
unnecessary to refer to them as We are in entire agreement with the view of
Beaumont C. J. We share with Beaumont C. J. his difficulty in understanding what
connection the terms of Order 30, Civil P. O. have on the question as to whether
the description of the plaintiff originally is or is not a misnomer which is
wholly a question of fact.

   9. We shall refer to the decisions of the Courts in England where a similar
result has been reached. The corresponding provisions in the rules of the
Supreme Court are identical with those in India and in fact white Order 1, Rule
10, Civil P. C. is a reproduction of Order 16, Rule 2 of the: Rules of the
Supreme Court, Order 30-, Civil P. O. is. practically a reproduction of Order
48-A of the Rules of the Supreme Court. Only one further fact has to be
mentioned that is, though 8. 22, Indian Limitation Act does not exist in England
in the form of a statutory provision the principle of that provision has been
applied by the decisions in: allowing applications for amendments. For this
purpose it is sufficient to refer to the decision of the Court of Appeal
reported in - 'Mabro v. Eagle Star and British Dominions Insurance Co. Ltd.',
1932-1 KB 485 (I), where the substitution of a plaintiff was refused on the
ground that such an addition would adversely affect the defen- dant by
preventing him from raising a question of limitation.

   10. The provisions in England being in 'parl materia' with those in the Civil
P. C. we will now proceed to consider the relevant decisions. The first case to
which it is necessary to refer is one of Farwell J. reported in - 'Noble Lown-
des and Partners (a firm) v. Hadflelds Ltd.', 1939-1 Ch 669 (J), in which the
facts were pecu-liar and serve to show that there could be no legal basis for
the reasoning of Blackweli J. in AIR 1928 Bom 191 (E), to which we have already.
referred. In the plaint as originally filed the plaintiff was described as
"Noble Lowndes and Partner's (a firm)" and prayed for reliefs against the
defendants by way of damages. for depriving the plaintiffs of their commissions.
The defendants denied the contract. Before the trial of the-action the
defendants discovered that there was no such firm as "Noble Lowndes and Partners
(a firm)" to institute the suit.

   It appeared that there were some arrange- ments between Mr. Lowndes and
certain others - but the result of the arrangements did not create a
partnership. The defendants immediately took out an application to have the
statement of claim struck out, the ground being that the plaintiff was a non-
existent person. Lowndes thereupon applied by summons to be substituted as the
sole plaintiff. The question which the Court had to consider was whether the
amendment could be permitted under the rules it being conceded that there was no
partnership as such that filed the suit, and Order 48-A corresponding to Order
30, Civil P. C. being obviously inapplicable. This depended upon whether the
terms of Order 16, Rule 2 of the Rules of the Supreme 'Court corresponding to'
O. 1, Rule 10, Civil P. C. were satisfied or not. This provision is in these
terms;

     "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 bond fide mistake and that it is
necessary for the determination of the 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 fit."

   Two questions therefore arose for consideration. The first was whether the
mistake of the plaintiff was bona fide and secondly whether really the plaint
had 'been instituted in the name of a wrong person. Farweli J. held that he was
satis-fied that the mistake on the part of the plaintiff Lowndes was a bona
fide. The next question was whether the original plaintiff was really
nonexistent and consequently whether the principle that a living person could
not be substituted for a non-existent entity could be invoked to deny to the
plaintiff the relief by way of amendment. Dealing with this objection Farwell J.
said:

     "Order 48-A enables persons carrying on business in partnership to sue or
be sued in the firm name, but that is a rule made for convenience, and an action
toy or against a firm notwithstanding the rule remains an action by or against'
the individual members of the firm ........Such an action remains therefore an

     action by or against individuals, and consequently I am not being asked to
substitute a living person for a non-existent entity but I am being asked to
strike out the names of all the plaintiffs except one and leave that one as the
sole plaintiff."

   This decision was approved and followed by the Court of Appeal in -- 'W. Hill
and Son v. Tan-nerhill,' 1344-1 KB 472 (K). Walter Hill was carrying on business
solely without any partners Under the trade name of "W. Hill and Son" :and lie
filed '"an action in his trade name. Under Order 48-A, Rule l (corresponding to
Order 30, Rule 10 and just like it) though an individual trader carrying on
business in a name other than his own might be sued in his trade name he cannot
file any suit in such name. A plaint was filed by W. Hill .and Son on 21-4-1943
in respect of damages for negligence arising out of an accident on 24-4-1942.
Section 21, Limitation Act of 1959 provided a period of one year for suits in
respect of such -causes of action with the result that by 24-4-1943 the period
of limitation prescribed- by the statute elapsed. On 29-11-1943 the plaintiff
.Hill being advised about the description in the pleading being defective took
out a summons in which he prayed for an order for the substitution as plaintiff
in the action "Walter HIll trading as "W. Hill and Son".

   The defendants opposed the application on the ground that by that date the
claim was barred by limitation. But an order was made in favour of the plaintiff
by the Master, which was affirmed by Stable 4. on appeal. The defendants
thereupon filed an appeal to the Court of Appeal. The argument before that Court
was that the plaint as originally instituted should be treated as a nullity and
as hot disclosing any cause of action because the real plaintiff was not
described and based on this reasoning he relied upon the decision in 1932-1 KB
485 (I), for the position that as the amendment would deprive the defendant of
the valuable plea of limitation it ought not to be allowed. The appeal was
dismissed on the ground that the order to amend; did not any new party but was
merely a case of a cor rection of a misdescription which did not involve: any
real substitution. Scott L. J. stated;

     "When the writ was issued in the name of "W, Hill and Son" there was an
individual person in fact interested hi the claim. His description as 'W. Hill
and Son' was a mistake by a clerk. The question is whether that mistake is more
than a mistake in form... In my opinion it is not."

   The learned Judges both Scott L. J. as well as Du Pareq L. J. make it clear
that they are not departing from the rule laid down by Scrutton L. J. in 1932-1
KB 485 (I), which was relied on by the defendants' counsel.

   11. The next case where the matter was considered is a decision of the Court
of Appeal in - 'Belgian Economic Mission v. A. P. and E, Singer Ltd'. 1950 WN
418 (L). An action was commenced by the plaintiffs described as "Belgian
Economic Mission". This Mission it was proved in evidence were merely the agents
through which the Belglam State were making the contract with the defendants. A
defence was raised that the "Economic Commission" was not a corporation and did
not exist as a firm and consequently the plaintiffs were not entitled to
institute the action. The plaintiffs thereupon took out a summons for the
amendment of the writ by substituting as plaintiffs "Paul Van Zeeland in his
capacity as Minister for Foreign affairs" and suing on behalf of the Kingdom of
Belgium. Devlin J. allowed the application for amendment.

   The defendants flied an appeal to the Court of Appeal which confirmed the
judgment' of fee learned Judge on the ground that the description of the
plaintiffs as "Belgian Economic Commission" was merely a misnomer intended to
describe the principal under the contract and that the plaintiffs had a right to
have the correct description of the party in accordance with the decisions of
the Court. The last case to be noticed is a decision of Sellers J. and is found
reported in -- 'Establissment Baudelot v. R. S. Graham and Co. Ltd.', 1952-2 TLR
736 (M). The plaintiffs in the .action were originally described as
"Establissment Baudelot" who were carrying on business in Prance. The action was
for .the price of goods sold and delivered.

   The evidence in the case- disclosed that though in the plaint, "Establissment
Baudelot" was des- cribed as a company incorporated according to the law of
Prance, it was not in fact a corporate body but was merely a name under which
three individuals carried on business in Prance and under which they contracted.
Defendants applied for the name of the plaintiffs being struck out on the ground
that they were a noh-existing person. The plaintiffs thereupon took out a
summons under Order 16, Rule 2, Rules of Supreme Court corresponding to O- 1;
Rule 10, Civil P. C. asking that the names of the individuals carrying on the
business be added to the name of the plaintiffs on the writ. Sellers J. allowed
the application of the plaintiffs for amendment. Dealing with argument that the
"Establissment Baudelot", was a non-existent person or entity and the name was
analogous to that of a dead person, the learned Judge said:

     "In these circumstances it seems a little odd to compare it to a dead man
and say that it has no existence at all. If it trades in the name Establishment
Baudelot and contracts and is taxed in that name, it seems to me a considerable
departure from a man who is dead."

   Then dealing with what the name indicated the learned Judge stated:

     "What, then, is this name? That it is not the name of a corporate body in
Prance does not make it in any sense that of a non-existent party, but it seems
to me only to emphasise what it is. It is the way in which these three people
describe themselves for the purpose of the trade........ In those circumstances,
the action has always been one brought by and on behalf of the three people who
are so con-cerned."

   The learned Judge concluded his judgment in these terms:

     "......... .....I think that this application on behalf of the defendants
to strike out the proceedings as being in the name of a non-existent plaintiff
is misconceived; the only error that exists is one of misnomer. The partnership
of these three individuals is not in a position to sue under the name
Establissment Baudelot, .but must sue in the name of the individual partners. I
therefore dismiss the summops of the defendants."

   The learned Judge granted the application of the plaintiffs for substituting
the names of the three individuals for the entity designated as "Establissment
Baudelot".

   12. In our opinion the quotations set out correctly express the law in India
also. If however imperfectly' and incorrectly a party is designated in' a plaint
the correction of the error is not the addition or substitution of a party but
merely clarifies and makes apparent what was previously shrouded in obscurity by
reason of the error or mistake. The question in such a case is one of intention
of the party and if the Court is able to discover the person or persons intended
to sue or to be sued a mere-misdescription of such a party can always be
corrected provided the mistake was bona fide vide Order 1 B. 10, Order P. C.
Such an amendment does not involve the addition of a party so as to attract
Section 22(1), limitation Act. Suits by or on behalf of dead persons stand in, a
different category. The prin-ciple that a misdescription could be corrected by
amendment could not obviously be 'applied to such a case but this is far from
saying that merely because the law does not recognise the firm as being a legal
entity, the firm name could not indicate or designate the Individuals composing
the firm.

   13. 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 partner-ship is in true an alias
for the person or the . group.

   In cases where the law permits the person or persons to sue or be sued in
such trade name, the proceedings could rightfully be conducted with such
designation; but the fact that the . provisions of the procedural law do not
enable a party to sue or be sued in such a name has no relevance to the question
as to the persons designated by such description. Under the terms of Order 7
Rule 1, the name and description of each party has to be set out in the plaint
and as abbreviations are not permissible in the absence of special statutory
provisions like Order 30 C. P. O. the full names and addresses of the parties
designated by such description have to be set out, . When by an amendment the
correction is effected it is clear that there is no addition of a party but
merely a clarification of the individuals already on record but described in a
manner not permitted by the law.

   14. Learned counsel for the appellant suggested that a suit by a foreign firm
in its trade name was analogous to suits on behalf of dead persons which have
been held to be nullities on the ground that the name of the foreign firm
designates a non-existent legal entity. We are however unable to accept the
argument. When a suit is filed purporting to be oh behalf of a person who is
dead on the date of the institution, there is no question of misdescription at
all. The name does signify and identify a person, only he does not exist on the
date of the suit. Such a name cannot be treated as a misdescription of the legal
representative. On the other hand in the case of the firm even though not
carrying on business in India the trade name does signify and designate the
individuals constituting the firm as much as in the case of firms carrying on
business in India. The fact that by the terms of Order 30, Rule l C. P. C. the
former category of firms are not enabled to avail themselves of the provisions
of this order, makes no difference as to the trade name designating the
individual partners. We are unable to agree with the reasoning of Blackwell J.
in AIR 1928 Bom 191 (E), and hold that the correct view is as stated earlier.

   15. The judgment appealed from is in our opinion clearly correct and the
Letters Patent appeal fails and is dismissed with costs.