PURUSHOTTAM UMEDBHAI & CO. versus M/S MANILAL AND SONS (IN CONNECTED APPEALS)

Citation: [1961] 1 S.C.R. 982 · Decided: 07-10-1960 · Supreme Court of India · Bench: SYED JAFFER IMAM · Disposal: Dismissed
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Judgment (excerpt)

October 7. 
982 
Sl1PREME COURT REPORTS 
Pt;RUSHOTTA!\I UMEDBHAI & CO. 
v. 
M/S . .MANILAL AND SONS 
(IX co:-.NECTED APPEALS) 
[ 1961] 
(8. ,J. htAM, A. K. SARKAR am! B.AOOHBAR 
DAYAL, JJ.) 
Pleadings- -Suit by foreign firm in firm namc--l'laint, if a 
'"'llity- -Application for amendment of plaint for substitution of 
names of partners instead of the 11ame of the firm-Maintainability 
---Code of Civil Pro"dure, 1908 (Act V of 1908), s. lSJ-0. XX X 
, 
rr.1. 2-0.1, rr. 10(1), l0(2). 
Partmrsl11p --- Power of Attorney-Partner if ca11 e.reculc power 
on bd1alf of all parltlers-l11dia11 Partnership Act, 19p (l X of 
1932) SS. 4, 18 illld 19(2). 
The respondent a firm carrying on business in Singapore 
filed a plaint in the firm name against the appellants for th& 
breach of contract. The plaint had been signed and verified 
on behalf of the firm by one' D ·on a power of attorney cxer.u-
tod hy one of the ;>artncrs only. 
After about 6 years the res-
pondents made an application fur the amendment of the plaint. 
The amendment sought was to the effect that the name of the 
firm as plaintiff il<' struck off, as it was a misdescription and in 
its place and stead the names of five partners of the firm should 
he brought on record in order to bring the controversy between 
the proper parties into clear relief. 
The amendment petition was rejected, inter ,.Jia, on the 
grounds that the original plaint was no plaint in law and it was 
not a case of misnomer or misdescription, nor a case of a non-
existent firm or a non-existent person, b·.1t a legal bar, as the 
plaint was a nullity. 
The proper course when there is. such a 
mistake is not to amend disregarding the condition of 0. r r. IO 
of the Code of Civil Procedure but to seek the Court's permis-
sion 10 withdraw tl1c suit with liberty to file a fresh suit under 
o. 23 r. I of the Civil Procedure Code on th• ground of formal 
defect and which should be done before limitation. 
Jn appe.al the High Court came to the conclusion that the 
description of a plaintiff by a firm name in a case where the 
Code of Civil Procedure docs not permit a suit to be brought in 
the firm name s!wuld properly be considered a case of descrip-
tion of the individual partners of the husiness and as su~h a 
n1isdescription, which in la\v can be corrected and should not 
b,~ considcrt~d to arnount to a description of non-existent per-
:i.Oll. 
It also rejected the contention that the power of attorney 
in favour of 'I)' was insufficient. 
,( 
' 
I S.C.R. SUPREME COURT REPORTS 
983 
Held, that the word" firm" or the" firm name" in s. 4 of 
the Indian Partnership Act is merely a compendious description 
of all the partners collectively. Where a suit is filed in the 
name of a firm it is still a suit by all the partners of the 
firm unle.ss it is proved that all the partners had not authorised 
the suit. 
The provision of 0. XXX r. 1 & 2 of the Code of Civil Pro-
cedure are enabling provisions to permit several firms who are 
doing business as partners to sue or be sued in the name of the 
firm and do not prevent the partners of a firm from suing or 
being sued in their individual names, nor do they prohibit the 
partners of a firm suing in India in their names individually 
although they may he doing business outside India ; since a 
firm is not a legal entity the privilege of suing in the name· 
of a firm is permissible only to those persons, who as partners 
are doing business in India. Such privilege is not extended tu 
persons who are doing business as partners outside India. In 
their case they still have to sue in their individual names. If 
however, under some misapprehension, persons doing business 
as partners outside India do file a plaint in the name of their 
firm they are misdescribing themselves, as the suit instituted is 
by them, they being known collectively as a firm. 
A plaint filed in a court in India in the name of a firm doing 
business outside India is not by itself a nullity. It is a plaint 
by all the partners of the firm with a defective description of 
themselves for the purpose of the Code of Civil .. Procedure. A 
civil court could permit under provisions of s. 153 of the Code 
an amendment of the plaint to enable a proper description of 
the plaintiffs to appear in it in order to assist the court in deter-
mining the real question or issue between the parties. 
Neither 
r. 10(1) nor r. ro(2) of Order I have any application to a case of 
this kind, as the suit had been
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