Imam, J. -
(1.)These are appeal by special leave against the order of the Division Bench of the Calcutta High Court dated December 18, 1958, setting aside the order of P. B. Mukherjea, J. dated February 8, 1957, whereby he rejected the petition of the respondent for amendment of the plaint, filed in Suit No. 1452 of 1951 in the High Court, in exercise of its Ordinary Original Civil jurisdiction.
(2.)The plaint in Suit No. 1452 of 1951 was filed in the name of Manilal and Sons, a firm carrying on business at No. 11A, Malacca Street, Singapore. The partners of this firm were five in number. They were (1) Manubhai Maganbhai Amin (2) Pravinbhai Dahyabhai Patel (3) Gangabhai Ishwarbhai Patel (4) Bachubhai Manibhai Amin and (5) Dahyabhai Trikambhai. The defendant was the firm of Purushottam Umedbhai and Co. (now the appellant) - a firm registered under the Indian Partnership Act, 1932 - carrying on business at No. 55 Canning Street, Calcutta. In July 1949 there was a contract between the plaintiff and the defendant under which the defendant was to sell to the former, subject to certain conditions, 950 bales of Heavy Cees gunny bags c. i. f. Singapore to be shipped from Calcutta in August 1949. It was also agreed between the plaintiff and the defendant in July-August, 1949 that the latter would sell, subject to certain condition, 600 bales of Heavy Cees gunny bags c. i. f. Hong Kong to be shipped from Calcutta in August, 1949. According to the plaintiff, the defendant did not perform the contract entered into by the parties and as a result of the default on the part of the defendant the plaintiff had suffered loss. The plaintiff accordingly claimed compensation to the extent of Rs. 2,73,864 and Rs. 7,850 towards expenses incurred, in all Rs. 2,81,714. The breach of the contract is alleged to have taken place in October and November, 1949. The suit was instituted on April 2, 1951. The defendant's written statement was filed on or about May 21, 1951. The petition for amendment of the plaint was filed on January 31, 1957. The amendment sought was to the effect that the name of the firm Manilal and Sons as plaintiff be struck off and in its place and stead the names of the five persons who were the partners of the firm may be entered in the plaint as plaintiffs. The petitioner also sought the necessary consequential amendment in the body of the plaint. According to the petition praying for amendment, on January 29, 1957, the solicitor of the plaintiff received a letter from the attorney of the defendant to the effect that inasmuch as the firm Manilal and Sons was carrying on business at Singapore, an objection would be taken on behalf of the defendant that the suit, as framed, was null and void and not maintainable. The suit had been pending in the court of P. B. Mukherjea, J. and appeared on the peremptory list, for the first time on January 3, 1957. According to the petition, the petitioner was advised that as the misdescription of the plaintiff was a bona fide one, the names of the partners of the firm Manilal and Sons should be brought on to the record to bring the controversy between the proper parties into clear relief. Accordingly, the petitioner filed the petition for amendment.
(3.)On a Chamber Summons being taken out, Mukherjea, J. heard the matter and rejected the petition for amendment. He was of the opinion that the original plaint was no plaint in law and therefore was a mere nullity of a process. The proper course, when there is such a mistake, is not to amend, disregarding the conditions of O. I. R. 10 of the Civil Procedure Code, but to seek the court's permission to withdraw the suit with liberty to file a fresh suit under O. XXIII, R. 1 of the Civil Procedure Code on the ground of formal defect and which should be done before limitation. In this opinion, it was not a case of misnomer or a misdescription. It was not a case of a non-existent firm or a non-existence person or of a wrong description but of a legal bar; and when a plaint is filed showing that the plaintiff was not a legally recognised person at all such a plaint must be regarded as a nullity. He was also dissatisfied with the explanation given for filing the petition for amendment some six years after the institution of the suit.