Sinha, J. - (1.) This is an appeal against an order passed by Datta J. on 10th April, 1962 whereby he dismissed an application made by the plaintiff for amendment of the plaint. The facts are shortly as follows: This appeal arises in connection with suit No. 659 of 1961 (Jardine Mills Agencies and another v. Neptune Navigation) which was filed by the plaintiff appellants in this Court on 1st of May, 1961 against the defendant respondents. The cause title as appearing in the original plaint was as follows: 1. Jardine Mills Agencies, a firm registered under the Indian Partnership Act and carrying on business at premises No. 4, Clive Row, Calcutta within the said jurisdiction.
(2.) Atlas Assurance Co. Ltd. a Company duly incorporated in England with limited liability and also carrying on business at 4, Clive Row, Calcutta, within the said jurisdiction--Plaintiffs. Versus Neptune Navigation, a firm registered under the Indian Partnership Act and carrying on business at Premises No. 133, Canning Street, Calcutta, within the said Jurisdiction--Defendant. The subject matter of the plaint is as follows: It is stated that the defendant is a common carrier of goods for hire by inland navigation. On or about 9th April, 1960 the plaintiff No. 1 delivered to the defendant a consignment of 1750 bales of jute at Gouhati and the defendant agreed as such carrier to carry the said goods safely and securely by its steamer m, v. (Rajan) from Gouhati to Calcutta and there to deliver the same to plaintiff No. 1 or its order for hire. It is stated that the defendant issued a bill of lading GAV/C/1393/60 dated April 9, 1960 in respect of the carriage of the said goods. The said vessel arrived at Calcutta on 28th April 1960. It is further stated that on or about 2nd May, 1960 after 1205 bales had been delivered, a fire broke out in the said vessel as a result of which the balance of the goods were destroyed or damaged as a result of the negligence or default of the defendant or its servants or agents. The plaintiffs said that they had suffered damages to the extent of Rupees 45,028.11 nP. less salvage. The claim in the plaint is for a decree for that amount with interest and costs. On 25th May, 1961 M/s. Sandersons and Morgans, solicitors for the plaintiffs enquired of M/s. Fowler and Co., solicitors, as to whether they would accept service of me writ of summons on behalf of Neptune Navigation, the defendant in the suit. On the 17th June, 1961 Messrs. Fowler and Co., Solicitors, replied stating that they had received instructions from the defendant to accept service of the writ of summons on their behalf. On or about the 27th June, 1961 the writ of summons along with the copy of the plaint was served on Messrs. Fowler and Co., by the Sheriff. On the very same day Messrs. Fowler and Co., wrote to the Sheriff of Calcutta as follows: "In this suit we as Solicitors for Neptune Navigation had informed Messrs. Sandersons and Morgans that we had instruction to accept the service of the writ of Summons on behalf of the defendant. The Writ of Summons together with copy of plaint has today been served on us with a notice that it was being served on Bijoylal Chopra or Pannalal Chopra as partners of the defendant. In fact none of the said two persons is a partner of the defendant and as such we are unable to accept the service on their behalf. We, are, therefore, returning the writ herewith...." 2. Thereafter, the plaintiffs applied for and obtained an order under Order 30 Rule 3 of the Code of Civil Procedure, for service of the Writ of summons upon V. M. Sha as manager of Neptune Navigation. On the 27th September, 1961 the Writ of Summons along with the copy of the plaint was sought to be served upon the said V.M. Sha, but as he refused service, it was served by affixation on premises No. 133, Canning Street, Calcutta. On the 5th October, 1961 the said V.M. Sha wrote a letter to the Sheriff enclosing the Writ of Summons, stating that he was not the person having control arid management of the business of Neptune Navigation of 133, Canning Street, Calcutta. On or about the 22nd December, 1961 the suit appeared for hearing as an undefended suit before Datta, J. when counsel appeared for Rani Jagadamba Kumari Devi and submitted that she was the sole proprietrix of Neptune Navigation of 133, Canning Street, Calcutta, and asked for time to enable his client to apply for leave to defend the suit. The suit was thereupon adjourned. On the 18th January, 1962 Rani Jagadamba Kumari Devi, describing herself as the sole proprietrix of Neptune Navigation of 133, Canning Street, Calcutta took out a Master's summons for a direction upon the plaintiffs to serve upon her or her solicitors a copy of the plaint and for leave to enter appearance and file a written statement and defend the suit. In the petition in support of the said application, it was stated that at all material times the petitioner Rani Jagadamba Kumari Devi carried on and still was carrying on business under the name and style of Neptune Navigation as the sole proprietrix thereof at No. 133, Canning Street, Calcutta and her solicitors were Messrs. Fowler and Co. It was stated that the plaintiffs were wrongfully contending that Neptune Navigation was it partnership firm and it sought to serve the writ of summons on various persons other than the petitioners so that it is necessary for the petitioners to defend the said suit by entering appearance and filing a written statement stating out all facts in defence of the said suit including the facts stated above. This application was contested by the plaintiff. One Donald Forwood describing himself as Assistant Secretary of Jardine Heuderson Ltd., affirmed an affidavit-in-opposition dated 7th February, 1962 in which he denied that the plaintiffs were wrongfully contending that Neptune Navigation was a partnership firm as alleged or that it was necessary for the petitioner to defend the suit for the reasons alleged or at all. The affidavit-in-reply was filed by Shantilal Mehta describing himself as constituted attorney of the Rani. He stated that V.M. Sha was neither a manager of the defendant nor he has any authority to accept the Writ of Summons on behalf of the defendant, as he was nothing but an assistant in the office of the petitioner. When this application came up for hearing, counsel appearing on behalf of the plaintiff asked for an opportunity to make an application for amendment of the cause-title of the plaint. On the 13th March, 1962, the plaintiff took out a Master's summons asking for leave to amend the plaint and for other consequential reliefs. In paragraphs 15 and 10 of the petition used in support of the said application; the following statements were made:- "15. The said application came up for hearing before his Lordship the Hon'ble Mr. Justice Datta on or about March 9, 1962. Counsel appearing on behalf of the applicant submitted to his Lordship that the said Rani Jagadamba Kumari Devi was the sole proprietrix of Neptune Navigation of 133, Canning Street, Calcutta, and asked for an order directing your petitioners to serve a copy of the plaint on the said Rani Jagadamba Kumari Devi or Messrs. Fowler and Co. and for an order giving leave to the applicant to enter appearance and file written statement. 16. Counsel appearing on behalf of your petitioners accepted the said statement that Rani Jagadamba Kumari Devi was at all material times and still is the proprietrix of Neptune Navigation of 133, Canning Street, Calcutta, and submitted to his Lordship that leave be given to your petitioners to amend the cause title of the plaint accordingly. His Lordship upon the said submission made was pleased to direct your petitioners to apply for an amendment of the plaint and for that purpose adjourned the said application for a week."
(3.) In the said application, the petitioners asked for an amendment of the cause-title in one of two alternative ways. In the first, they merely prayed that the words "a firm registered under the Indian Partnership Act and" in the description of the defendant in the cause-title should be struck off. Alternatively, they prayed that the name and description of the defendant should be altered as "Rani Jagadamba Kumari Devi carrying on business under the name and style of Neptune Navigation at premises No. 133, Canning Street, Calcutta, within the said jurisdiction". This application was contested by Rani Jagadamba Kumari Devi and Shantilal Mehta in his affidavit affirmed on March 1962 inter alia stated as follows; "13. I deny the allegations made in paragraph 11 of the petition. I say that the suit has been filed against the said Bejoylal Chopra and Panualal Chopra in the name or their registered partnership firm and not against the said Rani Jagadamba Kumari Devi or her said concern. The said Bajoylal Chopra and Pannalal Chopra also carried on business for sometime at No. 133, Canning Street, Calcutta as partners of the then Neptune Navigation. 16. I deny and dispute the allegations and submissions made in paragraphs 17 to 20 of the petition, I say that the plaintiffs having made the defendant and its said partners party to the suit, cannot by amendment as indicated in An-nexure C or D discharge them from the suit and make the said Rani Jagadamba Kumari Devi as party to the suit and then make her liable for all costs incurred up to date in the suit." The application of the plaintiffs for amendment of the plaint and the application of the Rani for leave to defend the suit were both heard by Datta, J. and by his judgment and order dated 10th April 1962 the learned Judge dismissed both the applications. It is against this order dismissing the plaintiffs' application for amendment of the plaint that this appeal is directed. On the 17th January, 1964 the appeal appeared in the list of Bachawat and Mukherjee, JJ. and upon the application of Rani Jagadamba Kumari Devi, she was added as a party to the appeal. It is this appeal that has now come up before us for hearing and Rani Jagadamba Kumari Devi only is contesting the appeal. At the hearing, Mr. Dev appearing on behalf of appellants has prayed that the cause-title be amended by omitting the words "a firm registered under the Indian Partnership Act and". He does not insist on the other alternative amendment inserting the name of the Rani. The contest between the parties may be briefly stated as follows: According to the appellants, they engaged Messrs. Neptune Navigation of No. 133 Canning Street, Calcutta, who acted as common carrier of goods for hire and it was Neptune Navigation which issued the bill of lading No. GAV/C/1393/60 dated April 9, 1960. It is argued that the said Neptune Navigation was misdescribed in the cause title as a firm registered under Indian Partnership Act. What happened was that there was in fact a Neptune Navigation which was a registered partnership firm, the partners being Bejoylal Chopra and Panrialal Chopra. This firm however, carried on business at No. 42 Vivekananda Road. It appears that this firm did not exist at the relevant time, but it is admitted on behalf of the respondent Rani that Bejoylal Chopra and Pannalal Chopra also earried on business for some time at No. 133, Canning Street, Calcutta, as partners of Neptune Navigation. According to the Rani, at the relevant time she was the sole proprietrix of the business, Mr. Dev argues that it was always intended and is still intended to sue Neptune Navigation of No. 133, Canning Street, Calcutta, which issued the bill of lading and accepted the goods for carriage; but as a result of wrong information it was misdescribed in the cause title as a registered partnership firm, while in fact Rani Jagadamba Kumari Devi is the sole proprietrix thereof. Under Order 30 Rule 10 of the Code of Civil Procedure, any person carrying on business in a name or style not his (or her) own may be sued in such name or style, as if it were a firm name; and so far as the nature of the case will permit, all rules under Order 30 of the Code will apply. He argues that in the interest of justice the cause title should be allowed to be amended. It is argued on behalf of the Rani that it is not a case of misdescription at all, but a substitution. It is argued that a partnership firm is not a legal entity, but is a compendious description of the names of the partners. What is to be considered is as to what the plaintiffs originally intended to do. It is stated that although Messrs. Fowler and Co. agreed to accept the Writ of Summons on behalf of the Rani, the plaintiffs caused the Writ of Summons to be served, as if ft was a service on partners, namely, Bejoylal Chopra and Pannalal Chopra and that is the reason why Messrs. Fowler and Co. refused to accept service. Thereafter the Rani actually made an application for leave to enter appearance and defend the suit, but this was strongly contested and it was dented that she was the sole owner of the business at the relevant time. It is argued that on these facts it is quite clear that the plaintiffs originally intended to sue the said two partners and the registered partnership firm, Neptune Navigation. Now they wish to substitute the name of the Rani in their place and stead, but in the meanwhile the claim is barred by limitation so far as she is concerned. If, of course, it is a case of substitution, the limitation will be considered as at the date of substitution and not at the commencement of the suit, and there are good grounds for contending that the suit is barred. Therefore, the real point to be considered is, as to whether it is a case of misdescription or substitution. The authorities show that if it is a misdescription only, an amendment should be allowed and in that event no question of limitation will arise. On the other hand, if it is a case of substitution then, the question of limitation must be taken into consideration and there are great difficulties in the way of allowing an amendment at this stage. The learned Judge, upon consideration of the facts of the case, has come to the conclusion that it is a case of substitution and has dismissed the application. The learned Judge states that it is now a "common case" of the parties that there is a firm consisting of two partners Bejoylal Chopra and Pannalal Chopra by the name of Neptune Navigation in the register of firms having its office at No. 183, Canning Street, and there is no entry in the register of firms that the said firm was dissolved. The learned Judge is in error, because there never was a registered partnership firm of Neptune Navigation, having its office at No. 133, Canning Street There was a registered firm of that name carrying on business at No. 42 Vivekananda Road in which Bejoylal Chopra and Pannalal Chopra were the partners, but that firm has long ago been dissolved. It appears, however, that these two gentlemen were carrying on business in the same name at premises No. 133, Canning Street for sometime, but at the relevant time it is the Rani who is carrying on business under the name and style of Neptune Navigation as the sole proprietrix. In order to decide this point, it will be necessary to consider a number of authorities. T will first consider certain English authorities which have been cited before us. The first case cited is a decision of the Court of appeal Emily Rose Hiltoa v. Sutton Steam Laundry (a firm), (1945) 2 All ER 425. In that case, the appellant brought an action describing herself as administratrix to the estate of her deceased husband. At the time of issuing the writ, letters of administration had not been taken out by her to the estate of her deceased husband. She made an application for amendment of the cause-title by striking off the words "as administratrix of the deceased's estate" so that the claim by her would be in a new capacity as a dependant of the deceased under the Fatal Accidents Act, 1846. It was held that the amendment could not be allowed. R. S. C., Order 3 Rule 4 provided that the endorsement should show in what capacity a plaintiff was suing and the appellant had bound herself to an action in a reprsentative capacity which she did not possess and the amendment could not be allowed as it would deprive the respondents of their rights under section 3 of the Fatal Accidents Act, 1946. It was stated that if the amendment was allowed, the respondents would be prejudiced because they would lose the benefit of limitation. The next case cited is also a decision of the Court of Appeal---Alexander Mountain and Co. v. Rumere Ltd., (1948) 2 All ER 482. The facts in that case were as follows: The late Alexander Mountain carried on a business in the name of Alexander Mountain and Co. In other words, he was the sole proprietor thereof. In that business, he deposited a quantity of steel tubing with the defendants. A suit was brought in the name of Alexander Mountain and Co. against the defendants. Under R. S. C., Order 48-A Rule 1 an action can be brought in a firm name only where there are two or more partners. The position is the same under the Indian law. Immediately after the Writ was issued, the solicitors discovered the fact that the business had been carried on by Alexander Mountain without any partners and they informed the defendants of the position and notified them that they would apply for amendment when the action came on. When the action came on before Lord Goddard, an amendment was asked for. His Lordship with considerable reluctance expressed the view that he had no jurisdiction to make the amendment. In the Court of Appeal, Cohen, L. J. stated the facts as fallows, Alexander Mountain died in July 1947 and his widow was the sole executrix and beneficiary under his will. She continued the business in the name of Alexander Mountain and Co. with the assistance of her brother-in-law Mr. Haron. The solicitors unfortunately did not know the true position. They were under the impression that Mr. Haron was a partner. Under a misapprehension, the writ was issued in the name of Alexander Mountain and Co. which was not permissible under R. S. C. Order 48-A, Rule 1. The learned Judge held that the case should be properly treated as one of "misnomer" and the writ should be allowed to be amended by substituting the executrix as plaintiff. Scott, L. J. said that the Writ was issued on behalf of a living person wrongly described. It was a case of misnomer and therefore, the writ should be allowed to be amended.;