- (1.) THIS is an appeal by the defendant under Order XL11i, Rule 1 of the Civil Procedure Code from an order of remand made by the District Judge, Udaipur, dated the 18th of February, 1954.
(2.) THE facts giving rise to it are that the present suit was instituted by the firm Rai Bahadur Seth Moolchand Suganchand, Udaipur, through Malik Rai Bahadur Sir Seth Bhagchand Tekchand Soni resident of Ajmer. THE plaint was signed by Bhagchand Soni. THE suit was for the recovery of Rs. 4,652/10 and was based on an agreement which has been marked as Ex. P. 1. It was averred that the partnership between the parties had come to an end and the defendant was liable to pay the said amount to the plaintiff. THE defendant appellant traversed the suit and raised several objections. THE trial court framed four issues and recorded evidence of both the parties. On the 5th of December, 1952, the defendant closed his evidence and the case was fixed for arguments on 11th of December, 1952. A day earlier i. e. on 10th of December, 1952, learned counsel for defendant presented an application for permission to amend the written-statement. It was mentioned therein that the suit was filed by Firm Moolchand Suganchand whose proprietor was Seth Bhag Chand Soni, while the defendant's agreement was with Moolchand Suganchand (Mining Department) whose partners were different persons that the names of the two firms being similar, a mistake had crept in the written-statement. He, therefore, sought permission to make the following amendment: - "that the Managing Director of the defendant Company did not enter into any agreement on 1st of January, 1947,with the plaintiff Bhagchand Soni, Proprietor of the Firm Moolchand Suganchand, Udaipur. " This application was fixed for hearing on 12th of December, 1952. On that date the plaintiff's counsel also presented an application that he be permitted to add the words "mining Department" after Firm Rai Bahadur Seth Moolchand Suganchand, Udaipur and to substitute the word "partner" in place of the word "malik" before the name of Rai Bahadur Seth Bhagchand Soni. The plaintiff's application was turned down by the trial court on the same day on the ground that the amendment sought to be made by the plaintiff was not one of misdescription but of the substitution of a different legal entity. On the 20th of December, 1952, that court rejected the plaint under Order VII, rule 11 of the Civil Procedure Code. The plaintiff filed an appeal against this decree in the court of the District Judge, Udaipur. The appellate court has set aside the order of the trial court and remanded the case with direction to allow the amendment to the plaintiff and to proceed with the case in accordance with the law. The learned Judge has remarked that the amendment sought by the plaintiff is only a change in form and not in substance. A preliminary objection has been raised by learned counsel for the respondent to the effect that the appeal is not maintainable because the order of remand made by the learned District Judge is not under order XLI Rule 23. It may be observed in this connection that there is a sharp cleavage of opinion on this matter, among the different High Courts. In the case of Brija Lal Mitra vs. Upendra Kumar Mitra (1) it was held that the order of the court of first instance rejecting a plaint is a decree, but the order of the appellate court setting aside the decree of the Munsif is only an order admitting the plaint and. therefore, it does not come within the definition of the term decree, and, so no second appeal would lie. It was further observed that such order was not covered even by sec. 562 (corresponding to Order XLI Rule 23) and, therefore, no appeal would lie. This view was followed in the case of Tirath Singh vs. Ramchand (2) and it was held that - "an order on an appellate court setting aside an order of the Court of first instance rejecting a plaint and directing it to proceed with the trial of the suit on merits is not an order under Order XLI Rule 23, and is not appealable under Order XLIII Rulel (u ). " Lahore High Court has taken the same view in two subsequent cases of Mahomed Shah vs. Talabhussain Shah (3) and Basheshar Nath Goala vs. Birdi Chand (4 ). The Madras High Court has also adopted the same view, in the case of Province of Madras vs. Laxmi Amma (5 ). It was, however, held in that case that revision lies against such an order. A contrary view has been taken by the Nagpur High Court in Gobind vs. Baliram (6) and Sir Madhaorao Ganesh Deshpande vs. Keshao Gajanan Huldar (7 ). It may be mentioned that the first case of Brijlal Mitra vs. Upendra Krishna Mitra (1) does not give any reason why an order of the appellate court setting aside the decree of the trial court remanding the case did not come within the purview of sec. 562 C. P. C. (Order XLI Rule 23 C. P. C ). Similarly, no reasons were given for the view taken in the case of Tirath Singh vs. Ram Chand (2 ). That simply followed the Calcutta view. The other two Lahore cases have also simply followed the view taken in the previous case. In the case of Gobind vs. Baliram (6), the learned Judge gave his reasons for holding a contrary view. It was observed that - "a preliminary point can be broadly described as one which, when determined in favour of the plaintiff, permits the progress of the suit, but when determined against him, concludes it. " It was, held that an order setting aside the decree rejecting the plaint and remanding the case is covered by Order XLI Rule 23 and is therefore, appealable. The same reason was reiterated by the learned Judge in the case of Sir Madhaorao Ganesh Deshpande vs. Keshao Gajanan Huldar (7 ). In the case of Province of Madras vs. Laxmi Amma (5) this view was not accepted. It was pointed out in that case that even if the definition of a "preliminary point" given in the case of Gobind vs. Bali Ram (6) be accepted, the term "preliminary point" whold not include an order rejecting a plaint because the order does not conclude the suit. Another reason given by the learned Judge was that an order refusing to reject a plaint is not made appealable and therefore it seems anomalous that the order of an appellate court, which has the same effect, should be appealable. It is apparent that the matter is not free from difficulty. It would not be cut of place to reproduce Order XLI Rule 23 C. P. C. It runs as follows - "23. Where the court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal* the appellate court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit: and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand. " It is apparent from' the language of this rule that in order to attract its applicabi-lity the following conditions are necessary: - (1) There should be a decree of a court. (2) The decree from which the appeal is preferred should have disposed of the suit on a preliminary point. (3) The decree should be reversed in appeal. If these three conditions are present, then the appellate court may remand the case and after such a remand, an appeal against such an order would lie under Order XLIII Rule 1 (u ). Now in the present case, both the parties had finished their evidence and the case was only fixed for hearing the arguments be the trial court. At this stage, an objection was raised by the defendant. The plaintiff thereupon sought permission for amendment, but it was refused and the plaint was rejected on the ground that there was no cause of action. The rejection of a plaint comes with in the purview of the definition of decree as given in sec. 2 (2) of the Civil Procedure Code. That there was a decree of the trial court and the first condition was satisfied, The decree was reversed by the appellate court and the case has been remanded and, therefore, the third condition has also been satisfied. To this extent, there is no dispute between learned advocates on either side. It is only the second condition which requires consideration. The question arises whether the ground on which the plaint has been rejected is a preliminary point and whether it disposes of the suit. The term "preliminary point" has not been defined any where, but it would mean a point which would dispose of the suit without deciding other issues arising in the case. The preliminary point may be one of fact or of law. It was very aptly defined, if I may say so with respect, in to the case of Govind vs. Baliram (6) that a "preliminary point" is one, which when determined in favour of the plaintiff permits the progress of the suit, but when determined against him, concludes the suit. No objection was taken to this definition in the case of province of Madras vs. Laxmi Amma (5), but it was pointed out that the rejection of a plaint does not conclude the suit and, therefore, it would not be covered by the suit definition. It may be pointed out that while explaining the term "preliminary point" in the case of Govind vs. Baliram (6),the learned Judge was not giving an exact definition. To my mind, what he meant by conclusion of the suit was putting the party out of the court. When a plaint is rejected after the institution of the suit, that particular suit is certainly thrown out. Order VII Rule 13 permits the plaintiff to present a fresh plaint in respect of the same cause of action. But then, it is a fresh suit and not the previous suit. The next reason given in the province of Madras vs. Laxmi Amma (5) relied upon by learned counsel for appellant is that an order refusing to reject a plaint is not appealable, that the order of the appellate court setting aside the order of rejection has the effect and, therefore, why should it be appealable? This argument is not very appealing. If the trial court refuses to reject a plaint that order is certainly not appealable because the legislature though that such an objection can be made even at a later stage. But when the trial court rejects the plaint then that order amounts to a decree and the plaintiff against whom it is passed gets a right of appeal as an appeal from a decree. It the appellate court confirms the trial court's order then he gets a right of second appeal as well-See Annaprasad Dassi vs. Saratchandra Bhatta-charji (8 ). The plaintiff thus gets rights of two appeals if necessary. It would be equally anomalous, in my opinion, if the defendant. who gets a decree in this favour in the trial court, does not get a right of one appeal even through that decree is set aside by the appellate court. It has been held in a number of cases that if the suit is dismissed by the trial court on the point of limitation and if the appellate court sets aside the decree on that ground and remands the case, it would be covered by Order XII, Rule 23 It may be further pointed out that under Order VII, Rule 11, one of the grounds for rejection of the plaint is where the suit appears, from the statement in the plaint, to be barred by any law. It would not be proper to say that if the plaint is rejected under clause (d) of order VII Rule 11 of the Civil Procedure Code and the decree is set aside in appeal, Order XLI Rule 23 would be applicable but not in other cases. To my mind, the provisions of Order XLI Rule 23 would be perfectly applicable when an order setting aside a decree based on the rejection of a plaint is passed and an appeal against such order would lie under Order XLIII Rule 1 (u ). The present appeal is, therefore, maintainable and cannot be dismissed on the objection by learned counsel for the respondent. Now, coming to the merits of the appeal, it is contended by learned counsel for the appellant that the learned District Judge has, by allowing the amendment, permitted the present plaintiff to be substituted by an altogether new plaintiff. It is urged that such an amendment should not have been allowed specially when the suit was time- barred when the application for amendment was moved. Learned counsel has pointed out that according to the averment in the plaint itself, the cause of action arose on 21st of June 1948 when the partnership was dissolved. The suit was filed on 1st of July 1951, while the amendment application was moved on 19th of December 1952. The application for amendment was thus obviously filed beyond a period of three years since the date when the cause of action arose and under such circumstances the first appellate court ought not to have reversed the decree of the trial court. Learned counsel for the respondent has, on the other hand, urged that the suit was filed by the proper plaintiff and there was no question of substitution of one plaintiff by the other. The only defect in the plaint was that a full description of the plaintiff's firm was not given and since there was another concern also of a similar name and a confusion was likely to be stirred up on that account, the application for permission to amend the plaint was moved by the plaintiff. It is further urged that the defendant was in no doubt that the suit was filed by the right plaintiff; but after the completion of evidence of both the parties, the defendant himself had sought an amendment in bis written-statement and since that amendment, if allowed, would have created some misunderstanding, the plaintiff had to move an application to clear up that point. The question for determination, therefore, is whe-ther the plaintiff's application is for correcting the description of the plaintiff or for substitution of another plaintiff in place of the present one. If this were a case of substitution then the order of the first appellate court could not be justified. It is true that under Order I Rule 10 of the Civil Procedure Code, the court has power to order another person to be substituted if the suit is instituted in the name of a wrong person as plaintiff and the court is satisfied that the suit was no instituted through a bona fide mistake and that it is necessary for the determination of the real matter in dispute to allow the substitution. But sec. 22 of the Limitation Act provides that if a new plaintiff is substituted, the suit shall be deemed to have been instituted when he is so made a party and, therefore, if the suit would be time-barred on the date when a new plaintiff is to be substituted, then there would be no sense in allowing such an application Moreover, even if the suit be within time, the court has to see before allowing the amendment that the mistake is bona fide and that the amendment sought is necessary for the determination of the real matter in dispute. If the mistake is only one of misdescription these considerations are not necessary and so we have to see whether the amendment sought is for substitution or correction of description. Now, in the present case, it appears that much of the confusion has been due to the fact that there were two concerns of a similar name and the word "firm" has been used by both the parties rather loosely and not in strict legal sense of that term. According to section 4 of the Indian Partnership Act, persons, who enter into partnership with one another, are individually called partners and collectively a firm. If an individual carries on business in name or style other than his own, then simply because he adopts a sort of firm name, he would not constitute a firm in the legal sense of the term. Order XXX Rule 10 permits that any person carrying on any business in the name or style other than his own name may by used in such name or style as if it were a firm name; but if such person brings a suit, then he should bring the suit in his own name and not under the so called firm name. Order XXX Rule 1 allows that only two or more persons claiming or being liable as partners may sue or be sued in the name of the firm. This rule does not allow any individual to bring a suit in the name of his concern even though it may look like a firm name. It was common ground between the parties in the trial court that there were two concerns of a very similar name. One was a banking concern called Rai Bahadur Seth Moolchand Suganchand, Udaipur and the other called Rai Bahadur Seth Moolchand Suganchand (Mining Department), Udaipur thus, both the names were very similar and the only difference between the two was that of "mining Department" which appeared in the latter but not in the former. According to the trial court, Shri Bhagchand Soni was the sole owner of the first concern, while the second concern was a partnership firm and Shri Bhagchand Soni was only one of the partners thereof. The trial court thought that the present suit was brought by Shri Bhagchand Soni as the sole owner of the first concern and that the amendment sought was to substitute the firm of which Shri Bhagchand Soni was a partner in place of the former. It appears that the trial court was perhaps misled by the application for amendment which was drafted rather loosely and in which both the concerns were wrongly called firms. If there were really two different firms and if one firm were to be substituted by the other firm, then the trial court's decision would have been correct or if the suit were really brought by Shri Bhag-Chand Soni as the sole owner of his personal concern and if the firm were to be substituted in his place, then too the decision would have been correct. But it is clear from the plaint itself that the suit was brought by the firm and not by Bhagchand Soni as the sole owner of the concern. The title of the suit itself says Firm Rai Bahadur Seth Moolchand Suganchand, Udaipur. There was only one firm in its legal sense of the name of Rai Bahadur Seth Moolchand Suganchand, Udaipur. The other concern of this name was not a firm and, therefore, it should be taken that the suit was brought in the firm name. The only mistake which was committed, was that the words "mining Department" were not put in there. If those words were added, there would have been no difficulty It has been urged by the appellant's learned advocate that the word "malik" appearing after the firm name shows that the suit was brought by Bhagchand as the sole owner of his concern and not by the firm. It is true that the word 'partner' ought to have been used instead of the word 'malik'. But it would not be proper to lay unnecessary stress on that word because the Hindi equivalents are still not yet very exact in their legal connotation. After all, a partner is also one of the 'maliks' though not the sole 'malik' of the firm. Seth Bhagchand was not mentioned as the sole 'malik' in the title and, therefore, it cannot be said that he did not mean to bring the suit as a partner. It may be further observed that the trial court ought to have taken into consideration all the other averments which were made in the plaint and seen if the suit was brought by Shri Bhagchand as owner of the personal concern or as a partner of the Firm. A perusal of the plaint shown that the suit is based on the agreement which was entered into by the Firm Rai Bahadur Seth Mool-chand Suganchand (Mining Department) Udaipur, with the defendant. The defendant also understood the plaint in the same sense and this is crystal clear from the written-statement which was filed in the case. In paragraph 3 of the written-statement, it has been stated by the defendant that no right had accrued to the plaintiff to commence prospecting work before setting the procedure of business according to condition No. 6 of the agreement. This shows that the defendant clearly understood from the plaint that the plaintiff was the firm and the suit was based on the agreement between that firm and the defendant and not between the personal concern of Bhagchand Soni. Similarly, in para 5 of the written-statement, the word 'plaintiff' has been used for the firm and not for the personal concern of Bhagchand Soni. In paragraph 10 of the written-statement, Shri Bansilal has been named as the Managing Partner of the plaintiff. This leaves no doubt that the defendant fully understood that the plaintiff was the firm Rai Bahadur Seth Moolchand Sugan-chand (Mining Department), Udaipur because if the plaintiff were Shri Bhagchand Soni, as the owner of his personal concern, Bansilal could not be referred to as the Managing Partner. There could be no question of a partner or much less of a Managing Partner in a personal concern. It further appears from the record of the trial court that Bansilal was produced as a witness and it was stated by him that there were three partners of the firm Rai Bahadur Seth Moolchand Suganchand (Mining Department ). He was the Managing Partner and the other two were Seth Bhagchand and Seth Sunderlal. He also stated that this was a registered firm. Similarly, another witness Diwanchand was examined. He also stated that he was the Manager of the firm. All this evidence was led on behalf of the firm. The defendant cross-examined these witnesses and the defendant never tried to show that the suit was filed by a wrong person. It was only after the evidence of both the parties had finished that he tried to take up a new objection just to defeat the case on a technical ground, if possible. The plaintiff had put in his application for amendment just to clear the des-cription of the plaintiff so that no confusion may be left. This was clearly a case of correction of the misdescription of the plaintiff and not a case of substitution. Although the first appellate court has not given all these reasons in detail, its order reversing the decree of the trial court is not incorrect. I, therefore see no good ground for interfering in appeal and it is dismissed with costs. . ;