PURUSHOTTAM UMEDBHAI AND CO Vs. MANILAL AND SONS
LAWS(SC)-1960-10-13
SUPREME COURT OF INDIA (FROM: CALCUTTA)
Decided on October 07,1960

PURUSHOTTAM UMEDBHAI AND COMPANY Appellant
VERSUS
MANILAL Respondents


Referred Judgements :-

VYANKATESH OIL MILL CO. V. N. V. VELAMAHOMED []
L.N.CHETTIAR FIRM V. M.P.R.M. FIRM []
MURA MOHIDEEN VS. V O A MOHOMED []
AMULAKCHAND MEWARAM VS. BABULAL KANALAL TALIWALA []
NEOGI GHOSE AND CO VS. SARDAR NEHAL SINGH []



Cited Judgements :-

JAMIAT ULAMA VS. MAULANA MAHMOOD ASAD MADNI [LAWS(DLH)-2008-8-77] [REFERRED TO]
NAVAL KISHORE TAPADIA VS. MUNNILAL TAILOR [LAWS(CHH)-2010-4-40] [REFERRED TO]
SURAJ KALI AND 11 OTHERS VS. HARI PRASAD TIWARI (DECEASED) AND 6 OTHERS [LAWS(ALL)-2016-7-143] [REFERRED]
PERIM JANARDHANA RAO S/O PERIM RAJA VS. MALEPATI BALAJI S/O M PUSHPAIAH NAIDU [LAWS(APH)-2012-1-88] [REFERRED TO]
IDCOL CEMENT LTD VS. P ROY CHOWDHURY and COMPANY [LAWS(CAL)-2004-6-4] [>REFERRED TO]
GALA BEAUTY PARLOUR DELHI VS. GALA BEAUTY PARLOUR ROORKEE [LAWS(DLH)-1980-2-20] [REFERRED 2.]
COLUMBIA HOSPITAL & RESEARCH CENTRE PVT. LTD. VS. MAHARASHTRA INDUSTRIES [LAWS(BOM)-2022-6-13] [REFERRED TO]
GRAND BUOY ENTERPRISES VS. NATIONAL INSURANCE CO LTD [LAWS(KER)-1994-9-34] [FOLLOWED ON]
JAVERILAL KALYANJI VS. SHETH BROTHERS [LAWS(KER)-1988-12-22] [REFERRED TO]
RANGILAL AND SONS AND ANR. VS. THE INDUSTRIAL DEVELOPMENT CORPORATION OF ORISSA LIMITED [LAWS(ORI)-1979-5-9] [REFERRED TO]
UNION OF INDIA VS. ASHOK KUMAR RASIKLAL [LAWS(ORI)-1987-5-4] [REFERRED TO]
JAI JAI RAM MANOHAR LAL VS. NATIONAL BUILDING MATERIAL SUPPLY GURGAON [LAWS(SC)-1969-3-43] [FOLLOWED]
GURJANT SINGH VS. KRISHAN CHANDER [LAWS(RAJ)-2001-1-57] [REFFERED TO]
SHANTI DEVI SHARMA VS. RADHESHYAM PALOD [LAWS(MPH)-2000-1-13] [REFERRED TO]
B C NARAYAN VS. VIJAYANAGAR SYNDICATE [LAWS(KAR)-1992-12-3] [REFERRED TO]
DHARAMDAS GOKALDAS VS. KRISHAN CHAND HARI CHAND REGISTERED METAL MERCHANTS [LAWS(P&H)-1965-3-31] [REFERRED TO]
RAMNIKLAL M. DOSHI VS. SPECIAL DIRECTOR, ENFORCEMENT DIRECTORATE AND ANR. [LAWS(BOM)-2012-9-235] [REFERRED TO]
MOHD. MUSTAHSAN SIDDIQUI VS. SMT. RIZWAN AMRA AND ANOTHER [LAWS(ALL)-2018-1-630] [REFERRED TO]
VIJAY KUMAR BHARTIA FAMILY TRUST VS. RANKEN AND COMPANY P. LTD. AND ANR. [LAWS(CL)-2009-6-7] [REFERRED TO]
RAMINDER KAUR VS. RAJINDER KUMAR PAHWA AND ORS. [LAWS(P&H)-2014-9-144] [REFERRED TO]
THOMAS VS. GEORGE [LAWS(KER)-1972-4-5] [REFERRED TO]
AWADHESWARI PRASAD NARAIN SINGH VS. PRITI GARMENTS PATNA [LAWS(PAT)-2009-5-5] [REFERRED TO]
GANESH TRADING CO VS. MOJI RAM [LAWS(SC)-1978-1-33] [REFERRED TO]
REVAJEETU BUILDERS AND DEVELOPERS VS. NARAYANASWAMY AND SONS [LAWS(SC)-2009-10-17] [REFERRED TO]
NIHALCHAND VS. NORATMAL [LAWS(RAJ)-1965-2-16] [REFERRED TO]
KERALA STATE CIVIL SUPPLIES CORPORATION VS. A V K TRADERS [LAWS(KER)-2012-3-262] [REFERRED TO]
GURRAPU PENCHALAIAH AND OTHERS VS. RAYAPU CHINNAIAH AND OTHERS [LAWS(APH)-2016-10-35] [REFERRED TO]
BHARAT SURYODAYA MILLS CO LTD VS. MOHATTA BROS [LAWS(GJH)-1968-4-7] [REFERRED]
SITARAM SAWHNEY VS. KUNDAN LAL SAHNI [LAWS(CAL)-1967-6-32] [REFERRED TO]
SAURASHTRA FUELS P LTD VS. STATE OF GUJARAT [LAWS(GJH)-2010-8-282] [REFERRED TO]
JANAB SYED KAZIM SAHAB VS. JANAB SAYEED BAKARAN SAHAB [LAWS(APH)-1989-12-19] [REFERRED TO]
HARI SHREE ENTERPRISES VS. VIKAS HOUSING LTD [LAWS(BOM)-2009-3-102] [REFERRED TO]
PUSHPA RANI VS. ANOKHA SINGH [LAWS(DLH)-1975-5-22] [CITED]
PODELLY CHINNA CHINNANNA VS. BANDARI PEDDA BHUMANNA [LAWS(APH)-2003-12-95] [REFERRED TO]
DART INDUSTRIES INC. VS. TECHNO PLAST [LAWS(DLH)-2017-2-224] [REFERRED TO]
PREM SHARMA VS. SIBY THOMAS [LAWS(HPH)-2000-7-38] [REFERRED TO]
T K T GARMENTS VS. MANAGER SRI BALAJI TRANSPORT LINES [LAWS(MAD)-2010-11-281] [REFERRED TO]
H K SHIVANANJAPPA VS. B K S MARULASIDDAPPA SONS [LAWS(KAR)-1991-9-10] [FOLLOWED ON]
KAMADHENU FINANCIERS VS. N PUSHPAVATHI [LAWS(KAR)-1998-7-49] [REFERRED TO]
SMT. ANGOORI DEVI AND ORS. VS. SURENDRA KUMAR KUKRETI AND ORS. [LAWS(UTN)-2012-11-47] [REFERRED TO]
HER HIGHNESS MAHARANI MANDALSA DEVI VS. M RARMARAM PRIVATE LIMITED [LAWS(SC)-1965-3-13] [REFERRED 3.]
ZILA PARISHAD, KANPUR AND ANOTHER VS. RAM BHAROSEY AWASTHI [LAWS(ALL)-1977-5-37] [REFERRED TO]
RAJENDRA NATH TIKKU VS. ROYAL CALCUTTA TURF CLUB [LAWS(CAL)-1963-7-26] [REFERRED TO]
RAMLAL KANHAIYALAL SOMANI A PARTNERSHIP FIRM VS. AJIT KUMAR CHATTERJEE [LAWS(CAL)-1973-3-12] [REFERRED TO]
NILKANTHA ROY VS. DHIRENDRA NATH MULLICK [LAWS(CAL)-1975-9-44] [REFERRED TO]
PRADEEP ANOOP TRUST VS. A K BURMAN [LAWS(DLH)-1998-8-48] [REFERRED]
DHIRENDRA NATH CHAKRAVARTY VS. LALIT PRAKASH DUTTA [LAWS(GAU)-1994-12-13] [REFERRED TO]
SIDDALINGAWWA VS. SIDDAPPA @ SIDDANAGOUDA [LAWS(KAR)-2019-7-229] [REFERRED TO]
CHIEF ENGINEER (CONSTRUCTION) NORTHERN RAILWAY VS. BADRI NATH MAGGU [LAWS(J&K)-1973-5-2] [REFERRED TO]
POPULAR AUTOMOBILES VS. G K CHAMI [LAWS(KER)-2001-2-32] [REFERRED TO]
RAMESH JOSHI VS. THE GOVERNMENT OF M.P. AND ORS. [LAWS(MPH)-2019-11-321] [REFERRED TO]
PRASANNCHAND NAHAR SOLE PROPRIETOR HIRACHAND PRASANCHAND VS. MOHAMMEDSAH ABDUL [LAWS(MAD)-1993-6-40] [REFERRED TO]
Mudlappa VS. Srinidhi Textiles [LAWS(KAR)-1999-10-53] [REFERRED TO]
CURRENT INDIAN STATUTES VS. VRINDAVAN PACKERS [LAWS(P&H)-2011-2-161] [REFERRED TO]
DHARMENDRA KUMAR SHARMA VS. SOMENDRA BABU AND 13 OTHERS [LAWS(ALL)-2018-1-150] [REFERRED TO]
SYNDICATE BANK VS. HINDALCO INDUSTRIES LTD. [LAWS(DLH)-2014-5-466] [REFERRED TO]
LIBERTY FOOTWEAR COMPANY VS. LIBERTY INNOVATIVE OUTFITS LIMITED [LAWS(DLH)-2020-5-107] [REFERRED TO]
RAM KUMAR SHEW CHANDRAI ALIAS RAM KUMAR SHEW CHANDRAI VS. UNION OF INDIA [LAWS(CAL)-1976-3-6] [REFERRED TO]
National Building Material Supply VS. Jai Jai Ram Manohar Lal [LAWS(ALL)-1964-11-19] [REFERRED TO]
RAM VICHAR VS. DAULAT RAM MOHAN DASS [LAWS(DLH)-1966-10-3] [REFERRED TO]
ROYAL VILLA RESIDENTS ASSOCIATION VS. PROJECT MANAGEMENT COMMITTEE KOTTURPURAM [LAWS(MAD)-2018-7-680] [REFERRED TO]
JADUMANI PENTHEI VS. MANAGING DIRECTOR, NESCO AND ORS. [LAWS(ORI)-2016-1-17] [REFERRED TO]
BASHIR VS. HUSSAIN BANO [LAWS(MPH)-2005-2-76] [REFERRED TO]
J PURSHUTTAM DAS AND CO VS. R R BROTHERS [LAWS(PAT)-1972-12-4] [REFERRED TO]
AVK TRADERS VS. KERALA STATE CIVIL SUPPLIES CORPORATION LIMITED [LAWS(SC)-2013-10-64] [REFERRED TO]
SHETH JIVAJI RAJBHAI AND SONS VS. PATEL HATIMBHAI NAZARALI [LAWS(GJH)-1998-6-25] [REFERRED TO]
NAVROJEE AND COMPANY VS. MAGNOLIA SODA FOUNTAIN P. LTD. [LAWS(CAL)-2007-10-60] [REFERRED TO]
GODAVARI PRAVARA CANAL CO OPERATIVE PURCHASE SALE UNION LTD VS. KRISHNARAO [LAWS(BOM)-1973-3-4] [REFERRED TO]
RAYA REDDAIAH CHOUDARY VS. KRISHNA FINANCE CORPORATION [LAWS(APH)-2000-12-60] [REFERRED TO]
SRI RAM NATH VS. SRI KEDAR [LAWS(ALL)-1969-2-5] [REFERRED TO]
AMERICAN DRY FRUIT STORES VS. ADF FOODS LIMITED [LAWS(BOM)-2005-5-59] [REFERRED TO]
VIJAYANAGAR SYNDICATE REGD BANGALORE VS. B C NARAYAN [LAWS(KAR)-1992-6-12] [FOLLOWED ON]
MANIRAM INDUSTRIAL ENTERPRISES VS. B R SREERAM [LAWS(KAR)-1993-3-27] [FOLLOWED ON]
SHARDA SOOD VS. SURAM CHAND [LAWS(HPH)-2011-12-77] [REFERRED TO]
V.K. SOOD ENGINEER AND CONTRACTOR VS. UNION OF INDIA (UOI) THROUGH DEPUTY CHIEF BRIDGE ENGINEER [LAWS(P&H)-2011-3-462] [REFERRED TO]
RAMPRASAD DAGADURAM VS. VIJAYKUMAR MOTILAL HIRAKHANWALA [LAWS(SC)-1966-4-17] [REFERRED]
UNION OF INDIA VS. SUCHA SINGH, ETC [LAWS(P&H)-1972-1-55] [REFERRED]
MESSRS. N. HOSSAIN AND SONS VS. CORPORATION OF CALCUTTA AND OTHERS [LAWS(CAL)-1980-5-29] [REFERRED TO]
PIONEER PROTECTIVE GLASS FIBRE P LTD VS. FIBRE GLASS PILKINGTON LTD [LAWS(CAL)-1984-9-28] [REFERRED TO]
STATE BANK OF INDIA VS. RAMKRISHNA PANDURANG BARVE [LAWS(BOM)-1982-7-31] [REFERRED TO]
BOMBAY TRADING CO VS. JAI SANTOSHI MAA ENTERPRISES [LAWS(BOM)-2012-8-123] [REFERRED TO]
MOHAMED VALLI PATEL VS. WESTERN INDIAN OIL DISTRIBUTING CO LTD [LAWS(CAL)-1970-5-13] [REFERRED TO]
S PRAKASHCHAND VS. SHA HARAKCHAND MISRIMULL [LAWS(MAD)-2002-6-44] [REFERRED TO]
A R K RAMANATHAN CHETTIAR VS. LAKSHMINARAYANAN [LAWS(MAD)-1996-2-159] [REFERRED TO]
SHANTI DEVI AGARWAL VS. V H LULLA [LAWS(MPH)-2003-7-78] [REFERRED TO]
M/S. KRUPA ASSOCIATES VS. M/S.PRISM INFRA PROJECT [LAWS(MPH)-2019-8-186] [REFERRED TO]
SMT. NISHA MAHESHWARI VS. CONTINENTAL CONSTRUCTION LTD. AND ORS. [LAWS(P&H)-2010-9-310] [REFERRED TO]
VINOD KUMAR AND ANOTHER VS. CHETAN PRAKASH VERMA [LAWS(ALL)-2018-3-352] [REFERRED TO]
RAM KUMAR SHEW CHANDRAI A FIRM VS. DOMINION OF INDIA NOW THE UNION OF INDIA UOI [LAWS(CAL)-1976-4-13] [REFERRED TO]
SAI NATH ENTERPRISES VS. NORTH DELHI MUNICIPAL CORPORATION & ANOTHER [LAWS(DLH)-2015-12-607] [REFERRED]
P.SUBBHULAKSHMI VS. K.P.RAMASAMY [LAWS(MAD)-2020-12-101] [REFERRED TO]
C.S.COMPANY VS. KERALA STATE ELECTRICITY BOARD [LAWS(KER)-2022-6-358] [REFERRED TO]
SOHANLAL BASANT KUMAR VS. UMRAO MAL CHOPRA [LAWS(RAJ)-1985-5-4] [REFERRED TO]
MOHINDER SINGH & SONS VS. CHAWA COMMISSION SHOP [LAWS(P&H)-2002-2-77] [REFERRED TO]


JUDGEMENT

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.
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