DAS GUPTA, J. - (1.) THIS appeal raises the question whether when a suit has been instituted in the name of a partnership firm carrying on business outside India as plaintiff, a procedure which is not permitted by Order XXX, Rule 1 of the C. P. C. under which only partnership firms carrying on business within India may institute suits in the firm name, the defect can be cured later on by substituting in place of the firm name, the name of the individuals, who are the partners of the firm, by way of amendment. The plaintiff's name as mentioned in the plaint in the present suit is : 'Manilal and Sons, a firm carrying on business at No. 11A Malacca Street, Singapore'. It was subscribed in these words: 'Manilal and Sons by their constituted attorney D. P. Dunderdale'. The verification was also by the same gentlemen, D, P. Dunderdale, describing himself as constituted attorney of Manilal and Sons. This suit was instituted on 31 -3 -1951. Written statement was filed by the defendants, but no objection was taken therein to the defect indicated above namely, that though not permitted by the Code of Civil Procedure or any rules of the Original Side of this Court, the suit had been brought in the name of the partnership firm carrying on business outside India. The suit appeared in the Peremptory List of P. B. Mukharji, J., for the first time on 3 -1 -1957 and appeared therein for several days. On 20 -1 -1957, the defendant's Solicitor informed the plaintiff's Solicitors that as the plaintiff was a firm carrying on business at Singapore, an objection would be taken on behalf of the defendant at the hearing of the suit that the suit as framed was null and void and not maintainable. In view of this information and with a view to cure, if possible, the defect, as pointed out by the defendant's Solicitor, an application was made in the name, again of Manilal and Sons, the plaintiff, praying for substitution of the names of the individual partners of the firm in place of the firm name. It was averred that Dahyabhai Trikambhai Patel, Pravinbhai Dayabhai Patel, Gangaben Iswarbhai Patel, Bachubhai Manubhai Amin and Manubhai Maganbhai Amin bad at all material times been and were still the partners of the plaintiff firm; that the suit was intended to be instituted on their behalf, but that they had been collectively mentioned in the firm name and this being a mere misdescription, the plaint should be allowed to be amended by bringing on the record the names of the individual partners. If the amendment as prayed for be allowed, the plaintiff's name would appear thus: 'Dahyabhai Trikambhai Paid, Pravindbhai Dahyabhai Patel, Gangaben Iswarbhai Patel, Bachubhai Manibhai Amin and Manubhai Maganbhai Amin carrying on business under the name and style o Manilal and Sons, at No. 11A Malacca Street Singapore'. Consequential amendments in the body of the plaint by using the plural 'plaintiffs' instead of the singular were also prayed for. To these the defendant objected the main ground of the objection being that as the provisions of Order XXX, Rule 1. of the C. P. C. were not applicable to the case of a foreign firm, the effect or a suit being filed by a foreign firm in the firm name was that the suit was by an entity which had no existence in the eye of law. It was also urged that there was no proper application even now on behalf of the individual partners and so the application should not be allowed. It was further urged that, in any case, the application should not be allowed as the claims In the suit were now barred by limitation. It was further stated that Mr. Dunderdale who signed and verified the plaint as on behalf of Manilal and Sons bad not the proper authority to do so.
(2.) P . B. Mukharji, J., who heard the application, was of opinion that this was not a case of misdescription, but that the legal position was that the firm could not be legally recognised as a plaintiff and the plaint was a mere nullity of process, He also held that there was no scope of applying the provisions of Order I Rule 10 of the C. P. C. and that the only course open to the party was to ask for the Court's permission to withdraw the suit with liberty to file a fresh suit, But, as he himself recognised, this would have been of no use as a freshsuit would be barred by limitation. He was, however, of opinion that as this was not a case of misdescription, it must be held 'to be a case of substitution of new plaintiffs in place of an old one who is legally unrecognised', and to allow an amendment would be to deprive the defendants of the valuable right they have acquired, as the suit on such substitution would be barred by limitation. He further held that as the plaintiff could not sue in the firm name, the application for amendment in the firm name must also fail. On these conclusions, he dismissed the application, but made no order as to costs. In appeal against this order of dismissal it is contended before us that the learned Judge was wrong in his view that the naming of the plaintiff as 'Manilal and Sons, a firm carrying on business at No. 11A Malacca Street, Singapore', was not a mere misdescription. The real question is whether the words 'Manilal and Sons', as used in the plaint in describing the plaintiff, describe however defectively or clumsily some real persons seeking the aid of the Court to obtain some relief or whether they describe some person or thing which does not exist in law. As I have already indicated, the argument which found favour with the Court below is that the words, being the name of a partnership firm, described something which is not a legal entity and which has no legal existence and in the absence of some special provision, as provided by Order XXX, Rule 1 of the Code of Civil Procedure in the case of partnership firms carrying on business in India, the firm name would really be the name of nothing existing. If this be the correct position, the necessary consequence is that the plaint has no legal existence. What does not exist in law cannot be amended. So if the position be, as alleged, that this is not a case of misdescription but description of a non -existent something, the prayer for amendment must be rejected, whether or not this prayer is made at a time when a suit brought in the name of the individual partners would have been within time or it would nave been beyond the time prescribed by the law of limitation. I should myself think that if that is the position, there would not even arise the question or withdrawal of the suit, because as recognised by the learned Judge himself, the plaint would be a nullity.
(3.) IF , however as was pressed on behalf of the applicants, the words 'Manilal and Sons' do describe the several individual partners of the firm in Singapore carrying on business under the name and style of 'Manilal and Sons', it will be correct to say that as such a description has not the special protection of the provisions of Order XXX, Rule 1, it is a defective description. Such misdescription can certainly be corrected in law and ordinarily, in the absence of special circumstances, such prayer for amendment should be allowed.;