Decided on December 06,1938



- (1.)This suit was originally filed as a summary suit in the name of the plaintiff as a firm, and a declaration as required by Order XXX, Rule 2(i), disclosing the names of six partners in the firm was also filed. Order XXX, Rule 2(3), provided as follows:
Where the names of the partners are declared in the manner referred to in Sub-rule (2), the suit shall proceed in the same manner, and the same consequences in all respects shall follow, as if they had been named as plaintiffs in the plaint.

The suit filed in that way was therefore a suit filed by the six persons against the defendant. Reading the plaint in that way, the cause of action was that the defendant had given instructions to the six plaintiffs to effect transactions on his behalf ; that they worked as his brokers, and as a result of carrying out his transactions the six plaintiffs had suffered a loss and they claimed the same from the defendant. As the defendant was a resident of Surat, it was alleged in the plaint that a part of the cause of action (without stating what part) had arisen in Bombay within the jurisdiction of this Court, Leave under Clause 12 of the Letters Patent was obtained at that stage and the plaint was filed.

(2.)When the plaintiff firm (six plaintiffs) took out a summons for judgment, the defendant raised the contention that he had dealings with Motilal Tribhovandas Choksey, the individual, and not with the plaintiff firm. He contended that the firm, i.e. the six plaintiffs together had no cause of action against him at all and the suit should therefore be dismissed. On this contention the learned Chamber Judge granted unconditional leave to defend to the defendant.
(3.)Thereafter the plaint was amended and Motilal Tribhovandas Choksey, the individual, continued the suit in his own name. Consequential amendments were made in the plaint which made the cause of action as follows : Motilal, the individual, was employed by the defendant as a broker. Motilal was given instructions to put through the transactions in shares for and on behalf of the defendant which Motilal did. As the defendant failed to carry out his obligations under the transactions, Motilal suffered a loss and, in this suit, claimed to recover the same from the defendant. When these amendments were made and Motilal himself continued the suit, no leave under Clause 12 of the Letters Patent was obtained.

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