P L D 1961 Dacca 693 (PLP)

HASAN, J.‑This appeal is at the instance of the plaintiff who instituted a suit for realisation of a certain sum of money as dama ges and also for non‑delivery of six cases of goods mentioned in the plaint.

2. His case, in short, is as follows : 362 cases of `bright arm wire nails' were carried from Antwerp to Chittagong under B.L.No. 11 , dated 25‑3‑

54. At the time of taking delivery by the plaintiff, it was found that out of 362 cases, 108 cases were damaged and broken and 6 cases were found short. The plaintiff immediately applied for joint steamer survey and gave notice, and the same was done by Messrs. Khalil & Co. In course of the survey, it was found that some of the cases were damaged. Messrs Khalil & Co. also held a survey of 254 cases at the godown of the plaintiff and a report was submitted with details of the damage. The defendants failed to deliver the six cases which were found missing. Thereafter the plaintiff submitted a claim on the 10th of September, 1954, for an amount of Rs. 6,170/10/‑ assessing the claim on the basis of market value of the good prevailing at that time. Defendant No. 1 accepted the claim but objected that they as carriers were not liable to pay more than the C.I F. value of the goods and, as such, requested the plaintiff to amend the bill and to re‑submit the same. The plaintiff, accord ingly, re‑submitted a bill claiming Rs. 2,008/10/3 but the defendant No. 1 in spite of repeated demands, did not settle up the claim and pay the Money. The consignment was insured with defendant No. 2 under Policy No. CIGM‑64/1342, covering all risks includ ing pilferage and short‑landing etc. The defendant No. 2 is also liable to indemnify the plaintiff. Hence the plaintiff filed the present suit.

3. The suit was contested by the defendants Nos. 1 and 2 by filing separate written statements. The defendant No. 1, the carrier, admitted the liability for short‑landing of 6 cases and also the damages assessed by the surveyor in the course of his survey in the jetty, but disowned the liability assessed by the surveyor at the godown of the plaintiff. The defendant No. 2 denied the liability on ground that the damage, if any, was on account of the negli gence of the defendant No. 1 and, as such the defendant No. 1 is liable for the same. It was further contended that the claim against defendant No. 2 was premature.

4. Both the Courts below have dismissed the suit. Hence the present appeal at the instance of the plaintiff.

5. As the suit has been dismissed by the lower Appellate Court on a preliminary point, we are not called upon to decide the other points.

6. The only point that is necessary to be decided by us is whether the suit framed is maintainable and, if not, whether amendment of the plaint can be allowed. The lower Appellate Court held that, in view of the provision of Order XXX, Rule 1 of the Code of Civil Procedure, a suit in the name of a firm when the proprietor is one person, is not maintainable and, as such, the suit filed in the name of the firm belonging to a single proprietor is no suit in the eye of law. For this proposition of law, the lower Appellate Court had relied on cases of Neogi Ghose & Co. v. Sardar Nehal Singh and another (35 C W N 432) and Bhagvan Vanaji Marwadi and others v. Hiraji Premaji Marwadi (A I R 1932 Bom. 516) and also on the provision of Order XXX, Rule 1 of the Civil Procedure Code.

7. In the aforesaid Calcutta case (35 C.W.N. 432) a suit was instituted in the name of "Neogi Ghose Co. a firm carrying on business as plumbers at No. 15/1, Jugal Kishore Das Lane in the town of Culcutta." The plaint was verified by one Phanindra Nath Ghose. Subsequently, it was found that the said Phaninda Nath Ghose was the sole proprietor of the business carried on under the name "Neogi Ghose Co." In those circumstances, an objec tion was taken that suit in the name of "Neogi Ghose Co." as plaintiff was not competent, as a suit cannot be instituted by an individual carrying on business under a name otherwise than in his own name. Phanindra Nath Ghose later on filed an appli cation for amendment of the plaint by inserting the words "Pha nindra Nath Ghose carrying on business under the name and style of" before the name "Neogi Ghose Co." in the cause title and also to make other consequential alterations in the body of the plaint. It was contended on behalf of the plaintiff that as the error was of description, the plaintiff, after amendment of the plaint, would be entitled to claim the relief for which the suit had been brought. The said application for amendment of the plaint was opposed by the defendant contending that if the amendment be allowed, the plaintiff would only be entitled to such relief as he could have claimed if the suit had commenced on the date of the aforesaid amendment. This objection of the defendant was upheld by Buck- land, J. who observed "I should also direct that the plaintiff would only be entitled to such relief as he would be entitled to claim if the suit had gone on from the time of his being joined as plaintiff. But as in these circumstances learned counsel on behalf of the applicant says that the suit would be barred by limitation, he has asked me that, if I take that view, I should dismiss this application outright, which I accordingly do with costs."

8. In the aforesaid Bombay case A I R 1932 Born. 516 one Gamnaji, Jethaji, styling himself as the proprietor of the shop of Hiraji Premaji brought a suit against the firm of Mulchand Roy chand. It was held in that case "the creditor firm of Hiraji Premaji consisted, according to the appellants, of one partner Gamnaji Jethaji and, therefore, the suit could not be brought in the name of the firm under Order XXX, Rule 1 of the Code of Civil Procedure. The objection seems to be well founded as one man cannot constitute a firm, and a person trading himself as a firm or in an assumed or trading name may be sued in his trading name under order XXX, Rule 110 but he cannot sue in that name." From the aforesaid facts in the two cases referred to above, it is apparent that in the Calcutta case (35 C W N 432) the plaintiff was styled as "Neogi Ghose Co." but it was subsequently found that one Phanindra Nath Ghose was the sole proprietor who was not described within the four corners of the plaint plaintiff as the proprietor of the firm; and in the Bombay case (A I R 1932 Born 5‑16 sole the plaintiff was styled as "Hiraji Premji" when the sole proprietor was one Gamnaji Jethaji and it does not appear that the name of the sole proprietor was men tioned in the plaint as the sole proprietor of the firm.

9. In the present case, it has been contended on behalf of the plaintiff‑appellant that the name of his client has been wrongly described in the cause title of the plaint as Ismail Haji Sulaiman a proprietary firm ."instead "of Ismail Haji Sulaiman, a proprie tor of the firm.," and as such, section 22 of the Limitation Act has no application to this case. Subsection (1) of section 22 of the Limitation Act provides : "Where, after the institution of a suit, a new plaintiff ox defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party." It is further contended that the description of the plaintiff in the plaint being a wrong description, by the amendment of the plaint by describing the plaintiff as "Ismail Haji Sulaiman, a proprietor of the firm..."the plaintiff is not substituted or added and, as such, the suit cannot be deemed to have been instituted when the said amendment is made. In support of this contention reliance has been placed on the case of Mura Mohideen v. V.O.A. Mohamed and others (A I R 1955 Mad. 294). In that case the plaintiffs were the partners of a firm who were carrying on business in Burma under the trade name of "V.O.A. Alliar & Sons" which was registered under the law in force in Burma for the registration of partnership. It was with this firm the defendants had dealings. When Burma was over run by the Japanese, both the partners of the firm "V.O.A. Alliar & Sons" and that of the defendants came over to their native places in Madras State. On the 25th of October 1944, a suit was instituted for the recovery of a sum by the plaintiffs in the name of "V O.A. Alliar & Sons", through one of the partners "V.O.A. Mohamed." The defendants objected to the main tainability of the suit under Order XXX, Rule I of the Code of Civil Procedure on the ground that the provision of the said Order XXX, Rule 1, C. P. C., was only applicable to firm carrying on business in India and not to a firm carrying on business in Burma. . An application for amendment was filed on the 5th of September 1945, to amend the plaint by the substitution of the names of the three partners of the firm "V.O'A. Alliar & Sons" in its place and instead of the name of the firm. The said application for amendment was allowed by the District Munsif and it came up to the High Court. A single Judge of the Madras High Court, while disposing of the case, granted leave to appeal under the Letters Patent and a Division Bench of that High Court after discussing various rulings of the different High Courts including the case relied on by the lower Appellate Court as stated above, and also some English decisions, held: "In our opinion the quotation set out correctly expresses the law in India also. If however, imperfectly and incorrectly a party is designated in a plaint the correction of the error is not the addition or substitution of a party but merely clarifies and makes apparent what was previously shrouded in obscurity by reason of the error or mistake. The question in such a case is one of intention of the party and if the Court is able to discover the person or persons intended to sue or to be sued a mere misdescription of such a party can always be corrected provid ed the mistake was bona fide Order XXX, r. 10, C. P. C. Such an amendment does not involve the addition of a party so as to attract section 22 (1), Limitation Act. Suits by or on behalf of dead persons stand in a different category: The principle that a misdescription could be corrected by amendment could not obviously be applied to such a case but this is far from saying that merely because the law does not recognise the firm as being a legal entity, the firm could not indicate or designate the individuals composing the firm ............ 'In cases, where the law permits the person or persons to sue or be sued in such trade‑name, the proceedings could rightfully be conducted with such designation ; but the fact that the provisions of the procedural law do not enable a party to sue or be sued in such a name has no relevance to the question as to the persons designated by such description. Under the terms of Order VII, r. I, the name and description of each party has to be set out in the plaint and as abbreviations are not permissible in the absence of special statutory provisions like Order XXX, C.P.C., the full names and addresses of the parties designated by such description have to be set out. When by an amendment the correction is effected it is clear that there is no addition of a party but merely a clarification of the‑individuals already on record but described in a manner not permitted by the law."

10. Now the question before us is whether the description of the plaintiff as "Ismail Haji Sulaiman, a proprietary firm .. can be considered to be a misdescription or an error. If it is found that it is a misdescription or an error, then the provision of subsection (1) of section 22 of the Limitation Act is not attract ed ; but if it is not a misdescription or an error, then the amend ment of the plaint will attract the operation of subsection (1) of section 22 of the Limitation Act. The question whether it is a misdescription or not the intention 'of the plaintiff shall have to be looked into. Furthermore when mere description in the cause title brings a case under Order XXX, rule 1, C. P. C. that does not ipso facto prove that case is one under Order XXX, rule 1 and there cannot be any misdescription or reason in the cause title. The present suit was, filed in the name of Ismail Haji Sulaiman followed by the words a "proprietary firm". It is admitted that Ismail Haji Sulaiman is the sole proprietor ; and the defendant No. 1 also admitted his liability after understanding the case of the plaintiff. In the plaint no reference has been made to the provision of Order XXX, rule A of the Code. The plaint has been signed by "PP. Ismail.Haji Sulaiman" as a proprietor. The verification has also been on behalf of the Proprietor "PP. Ismail Haji Sulaiman". In the cause title of the written statement of the defendants Nos. 1 and 2, Ismail Haji Sulaiman has been written. The plaintiff has not been described by the defendants in their written objection as "Ismail Haji Sulaiman, a proprietary firm". This was done by the defendant knowing fully well that Ismail Haji Sulaiman instituted the suit. It also appears that "Ismail Haji Sulaiman" has been written in the written statement though objections have been taken as to the maintainability of the suit. In the other applications that have been filed by the plaintiff, he has signed as "Ismail Haji Sulaiman" and not as "Ismail Haji Sulaiman, a proprietary firm". So, in our opinion, the aforesaid facts go to show that the plaintiff Ismail Haji Sulaiman intended to sue in his name not in the name of the firm and "Ismail Haji Sulaiman a proprietary firm" is a wrong des cription of Ismail Haji Sulaiman and if the amendment be allowed, that will not attract the operation of susbection (1) of section 22 of the Limitation Act inasmuch as the plaintiff thereby not going to be substituted or added on the date of the amendment of the plaint as he is already there.

11. In the result, the appeal is allowed, the judgment and decree of the lower Appellate Court are set aside and the case is sent back to that Court for disposal of the appeal in accordance with law and in the light of the observations made above, after making necessary amendment in the plaint and the other docu ments as prayed for by the plaintiff. We, however, make no order as to costs. M. R. KHAN, J.‑I agree. K. B. A. Appeal allowed.