- (1.) The Appellant, who was the sole Defendant in a suit as originally framed and is the third Defendant now, complains of an order of Bachawat, J., dated April 9, 1957, by which the learned Judge allowed the Plaintiff to amend its plaint. In the plaint, as initially filed, the Plaintiff was shown as the Chamria Trading Company Ltd. By the amendment, the words, "The Chamria Banking and Trading Company Ltd. known as," have been directed and allowed to be added before the words "The Chamria Trading Company Ltd." The amendment allowed was not exactly the amendment prayed for, because the Plaintiff Respondent had asked for some further amendment of the cause title and also the addition of a whole paragraph in the body of the plaint. The learned Judge delivered no judgment, but since his order, as drawn up, mentions only the amendment which I have referred to, it is obvious that the rest were disallowed by him.
(2.) The amendment allowed by the impugned order was a second amendment of he plaint. Earlier, by an order, dated July 11, 1955, another amendment by which two Defendants were added to the suit had been allowed. It appears that, by its original plaint, the Plaintiff Respondent had claimed a certain declaration and a certain money decree against the Appellant alone. Subsequently, the Plaintiff applied for leave to withdraw the suit, apparently on the ground that by reason of the absence of two necessary parties, it was bound to fail, but P.B. Mukherji, J'., before whom the application was filed, directed him to apply for the addition of those two parties instead of withdrawing the plaint. The application was then made and allowed. Necessarily, the plaint had to be extensively amended and the prayers also were altered so as to make a claim for a money decree against one of the added Defendants, namely Defendant No. 2, the principal claim, the prayer for a similar decree against the present Appellant, being made only a prayer in the alternative.
(3.) It is nobody's case that there is now or was at any time any duly incorporated company of the name and style of The Chamria Trading Company Ltd. The Appellant accordingly contended before the learned trial Judge, and has contended before us as well, that the plaint filed by The Chamria Trading Company Ltd., being filed by a non-existent body, no valid suit ever came into existence on that plaint at all. The Chamria Banking and Trading Company Ltd. was however, a duly incorporated company and by the amendment which brought in that company as the real Plaintiff, a bad plaint had been allowed to be converted into a good one which was not. permissible under the law. The Plaintiff Respondent in reply to that contention set out at length the circumstances in which it found itself compelled to use the name, The Chamria Trading Company Ltd. In view of the order we are proposing to make, 1 do not think it necessary, nor will it be proper, to go into the correctness or otherwise of the contention of the Appellant or the Respondent's explanation. In short, the explanation was that the entity which had brought the suit was none other than the entity incorporated as The Chamria Banking and Trading Company Ltd. and that it was by reason of certain circumstances, over which the members of the Company had no control, that they had to use a name which would not include the word "Banking". The Appellant's contention is that even if that explanation was accepted, it would not validate the suit as originally brought and, therefore, its contention that the amendment had had the effect of removing an incurable defect from the suit and converted it into a good suit, remained. As I have stated already, I do not propose to go into the merits of that contention.;