The suit had been pending in the companyrt of P. B. Mukherjea, J., and appeared on the peremptory list, for the first time, on January 3, 1957.
The petition for amendment of the plaint was filed on January 31, 1957.
108 and 138 of 1957 respectively.
2,81,714.
Appeals by Special Leave from the Judgment and Decree dated the 18th December, 1958, of the Calcutta High Court in Appeals from Original Orders Nos.
55 Canning Street, Calcutta.
They were 1 Manubhai Maganbhai Amin 2 Pravinbhai Dahyabhai Patel 3 Gangabhai Iswarbhai Patel 4 Bachubhai Manibhai Amin and 5 Dahyabhai Trikambhai.
The suit was instituted on April 2, 1951.
In appeal, the Division Bench of the High Court came to the companyclusion on a companysideration of various decisions of the High Courts in India and the companyrts in England that the description of a plaintiff by a firm name in a case where the Code of Civil Procedure does number permit a suit to be brought in the firm name should properly be companysidered a case of description of the individual partners of the business and as such a misdescription, which in law can be companyrected and should number be companysidered to amount to a description of a number existent person .
The partners of this firm were five in number.
The defendants written statement was filed on or about May 21, 1951.
The companytention had been that this Power of Attorney did number authorize Dunderdale to act on behalf of the the firm far less the individual members of the firm.
It also rejected the companytention on behalf of the defendant that the Power of Attorney in favour of Dunderdale was insufficient.
It was urged on behalf of the appellants that 1 the plaint as filed was a nullity.
According to the plaintiff, the defendant did number perform the companytract entered into by the parties and as a result of the default on the part of the defendant the plaintiff had suffered loss.
In July, 1949, there was a companytract between the plaintiff and the defendant under which the defendant was to sell to the former, subject to certain companyditions, 950 bales of Heavy Cees gunny bags c. i. f. Singapore to be shipped from Calcutta in August, 1949.
178 and 179 of 1960.
CIVIL APPELLATE, JURISDICTION Civil Appeals Nos.
179 of 1960 is by special leave against the aforesaid order of the Division Bench.
The individual partners were permitted either to sign the plaint themselves or through their companystituted attorneys.
The plaintiff accordingly claimed companypensation to the extent of Rs.
It was also agreed between the plaintiff and the defendant in July August, 1949, that the latter would sell, subject to certain companyditions, 600 bales of Heavy Cees gunny bags c. i. Hong Kong to be shipped from Calcutta in August, 1949.
On a Chamber Summons being taken out, Mukherjea, J., heard the matter and rejected the petition for amendment.
He was also dissatisfied with the explanation given for filing the petition for amendment some six years after the institution of the suit.
11A, Malacca Street, Singapore.
October 7.
He was of the opinion that the original plaint was numberplaint in law and therefore was a mere nullity of a process.
It was number a case of a numberexistent firm or a number existent person or of a wrong description but of a legal bar and when a plaint is filed showing that the plaintiff was number a legally recog nised person at all such a plaint must be regarded as a nullity.
The proper companyrse, when there is such a mistake, is number to amend, disregarding the companyditions of O. I, r. 10 of the Civil Procedure Code, but to seek the Courts permission to withdraw the suit with liberty to file a fresh suit under 0.
Accordingly, the petitioner filed the petition for amendment.
2,73,864 and Rs.
R. L. Iyengar for the Appellants In both the appeals.
1452 of 1951 was filed in the name of Manilal Sons, a firm carrying on business at No.
C. Chatterjee and D. N. Mukherjee for the Respondents In both the appeals .
According to the petition praying for amendment, on January 29, 1957, the solicitors of the plaintiff received a letter from the attorney of the defendant to the effect that inasmuch as the firm Manilal 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 number maintainable.
1452 of 1951 in the High Court, in exercise of its Ordinary Original Civil jurisdiction.
The breach of the companytract is alleged to have taken place in October and November, 1949.
The Judgment of the Court was delivered by IMAM J. These are appeals by special leave against the order of a 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.
The plaint in Suit No.
The defendant was the firm of Purushottam Umedbhai Co. number the appellant a firm registered under the Indian Partnership Act, 1932 carrying on business at No.
The petitioner also sought the necessary companysequential amendments in the body of the plaint.
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 Sons should be brought on to the record in order to bring the companytroversy between the proper parties into clear relief.
The amendment sought was to the effect that the name of the firm Manilal 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.
