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Judgment
Mishra, J.—A dispute as to whether full amount of the Price or value of a motor vehicle was transferred by the hirers to the owners has
remained pending ever since the institution of a suit in the City Civil Court in the year 1977, which suit was withdrawn and later the suit, out of
which the instant appeal has arisen, was instituted on the original side of this Court. Certain other proceedings, including a criminal prosecution of
the defendants/respondents, have been initiated and it seems a trial is pending in a criminal court in the State of Karnataka. We intended,
accordingly, to find out the crux of the dispute between the parties and gave opportunity to them to suggest any amicable solution. We are
constrained, however, to proceed to deliver our judgment strictly in accordance with law for the reason of a certain rigid attitude adopted by the
defendants/respondents that according to them the suit has rightly failed in the trial court and accordingly the appeal should fail for the reason
mainly of a technical nature to which we shall specifically advert to in our judgment It seems there has been a vehicle bearing registration No.
M.Y.L. 7295. It is, however, stated on behalf of the plaintiff/appellant that he is the owner of the vehicle and that the defendants/respondents
should pay him a sum of Rs. 1,09,277.38 being the principal amount due under a Hire Purchase Agreement dated 13.6.1974, interest of Rs.
7,500.79 due thereon at 24% per annum, Rs.64,800/-bcing the damages from 14.11.1976 to 14.11.1980, Rs. 2,864.44 being the insurance
premium paid and Rs. 4,462.15 being the expenses incurred by him on behalf of the defendants. The case in the plaint has been summarised by the
trial court as follows:
The plaintiff as sole proprietor of M/s. Hirachand Prasanchand sues for declaration that he is the owner of the vehicle M.Y.L. 7295 for a direction
(hat the defendants should pay him a sum of Rs. 1,09,277.W being the principal amount due under a hire purchase agreement dated 13.6.1974,
interest of Rs. 7,500.79 due thereon at 24% per annum, Rs. 64.800/-being the damages defendants 1 and 2 arc liable to pay from 14.lf.1976 to
14.11.1980, Rs. 2,864.44 the insurance premium paid by the plaintiff for the said vehicle and Rs. 4,462.15, the expenses incurred by the plaintiff
on the plaintiff, nor the partnership firm ever cancelled the hire purchase agreement, The said partnership M/s. Hirachand Prasanchand was
dissolved in 1975 and on such, dissolution, the plaintiff became the sole proprietor of the said business and took over all the assets and liabilities of
the said firm. It is thus the plaintiff became entitled to claim all the rights in the said hire purchase agreement. The plaintiff also instituted O.S. No.
1080 of 1977 on the file of City Civil Court, Madras for declaration that the plaintiff is the owner of the vehicle and for consequential injunction
and the said suit was dismissed with liberty to the plaintiff to file a fresh suit on the same cause of action.
The 2nd defendant remained ex parte. The 1st defendant/1st respondent, however, denied execution of any agreement in favour of the plaintiff as
hirer or by way of hire behalf of the defendants, for a direction that the defendants should pay future amounts at Rs. l,350/00 per month, and for
direction that the defendants should deliver to the plaintiff the possession of the vehicle M.Y.L. 7295. The hire purchase agreement dated
13.6.1974 was entered into between the first defendant and M/s. Hirachand Prasanchand, a registered firm of partnership, the performance by the
first defendant having been guaranteed by the second defendant. The said agreement is renewal of an earlier hire purchase agreement dated
19.11.1970. The period of hiring expired on 14.11.1976. The first defendant not only failed to pay the hire amount and also damages but also
failed to deliver the vehicle to the plaintiff; on the other hand, the first defendant sold the vehicle to his near relation, the third defendant on the basis
of cancellation of the hire purchase agreement. Such endorsement in the R.C. Book is rank forgery; for, neither purchase, but in sum, as recorded
in the trial Court, judgment, the 1st defendant/1st respondent''s case in the court is as follows:-
It is denied on 13.6.1974, the first defendant as hirer and second defendant ax guarantor entered into hire purchase agreement with the plaintiff in
respect of suit lorry for Rs. 42,300/-. The second defendant is the agent of the plaintiff at Gedag and is colluding with the plaintiff. The prayer for
possession of the vehicle in any event is barred by limitation. Besides the payment of Rs. 12,600/- the first defendant had paid Rs. 22,500/- in full
quit on 4.10.1976 and a receipt in full settlement dated 4.10.1976 was obtained. The forgery is emphatically denied. It is reiterated that there was
no hire of the vehicle to this defendant. As the sale to the third defendant was effected in 1976 to the knowledge of the plaintiff, the claim for
possession is also barred by limitation. This defendant is not liable to pay Rs. 1,350/- per month from 14.11.1976 to 14.11.1980 or for any other
period. The claim for Rs. 29.650/-is without any basis and is also barred by limitation. It is denied, that a sum of Rs. 7,50l.79 is due by way of
interest, Even the claims for insurance premium and expenses are barred by limitation/
The 3rd defendant who, it is said, purchased the suit lorry from the 1st defendant for a valuable consideration without notice of any claim of the
plaintiff has alleged that he is a bona fide purchaser and that the suit claim is barred by imitation. The trial court, however, has framed as many as
nine issues, including a question as to a payment of a sum of Rs. 22,500/00 to the plaintiff by the 1st defendant or his representative, but has
disposed of the suit on the issue of limitation alone. The other objection before him as to the competency of this Court to entertain a suit of the
value as made out by the plaintiff has been decided by him in favour of the plaintiff/appellant and against the defendants/respondents.
Before we examine the validity of the finding on the question of limitation, in the instant case, we may recapitulate certain facts. The suit hire
purchase agreement is dated 13.6.1974, the Period of limitation expiring on 14.11.1976. A suit in the City Civil Court was filed being O.S. No.
1080 of 1977 by Prasanchand, who claimed to be a partner, in the name of the firm M/s. Hirachand Prasanchand. In that plaint it was said that the
partnership firm carried on business at No. 41, General Muthaiah Mudali Street, Madras-600 001 and the plaintiff sought declaration that the
plaintiff was the owner of the vehicle M.Y.L. 7295 and consequential injunction to restrain the defendants, their agents or servants from, in any
way, alienating, dismantling or dealing with the vehicle M.Y.L. 7295. The plaint, which appeared to have been verified in February, 1977, was
presented in court and numbered. But when was it presented is not available. When the suit was taken up for trial and one witness was examined,
the plaintiff came forward with I.A. No. 18258 of 1980, an application under O. 23, R. 1 of the CPC for withdrawal of the suit. The City Civil
Court Judge, by his order dated 9.12.1980, held as follows:-
There is no formal defect regarding the valuation of the suit and as such the suit cannot be withdrawn on the said ground.
The City Civil Court Judge, however, granted permission, to the plaintiff to withdraw the suit with leave to institute a fresh suit on the same cause of
action holding that the plaintiff firm represented by the alleged partner was not in existence and so the defect was such that went to the root of the
case. There can be no doubt that the suit in the City Civil Court was filed within time and the same was withdrawn under the orders of the Court in
I.A. No. 18258 of 1980 on 9.12.1980 with leave to the plaintiff to institute a fresh suit on the same cause of action.
The plaintiff herein Prasanchand, who had instituted O.S. No. 1080 of 1977 in the City Civil Court as a partner representing the firm thus
instituted the suit in the name of the firm, and described himself as the sole proprietor of the firm, retained the same defendants but introduced a
money claim by entering into the details of the money advanced, payments made, etc., and asked for a declaration that he is the owner of the
vehicle, but instead of consequential relief of injunction in the suit in the City Civil Court asked for recovery of possession of the vehicle and
moneys which, according to him, had fallen in arrears and payable by the defendants/respondents to him. The plaint, however, was presented in
this Court on 24.1.1981.
Going by the suit for the relief of declaration and recovery of possession of the vehicle, it is obvious that there is no escape from the finding that
the suit is barred by limitation and thus has to fail as held by the trial court, the only escape being a recourse to S. 14 of the Limitation Act, which
says as follows:-
Exclusion of time at proceeding bona fide In court without jurisdiction:-1. In computing the period of limitation for any suit the time during
which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision,
against the defendant shall he excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which,
from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another
civil proceeding, whether in a court of first Instance or of appeal or revision, against the same parry for the same relief shall he excluded, where
such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(3) Notwithstanding anything contained in R. 2 of O. 23, of the Code of Civil Procedure, 1908 (5 or 1908). the provisions of sub- S. (l) shall
apply in relation to a fresh suit instituted on permission granted by the Court under R. 1 of that Order, where such permission is granted on the
ground that the first suit must fail by reason of a defect in the jurisdiction of the Court or other cause of a like nature.
Explanation: For the purposes of this Section.
(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which
it ended shall both he counted;
(b) a plaintiff or an applicant resisting art appeal shall be deemed to be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.
The trial court has, however, held against the plaintiff/appellant on the question of exclusion of time of proceeding bona fide in court without
jurisdiction, on a finding that the plaintiff had not been prosecuting with due diligence the suit in the City Civil Court in O.S. No. 1080 of 1977 and
also on the ground that the partnership so called was not in existence in the eye of law when the suit was instituted in the City Civil Court in O.S.
No. 1080 of 1977 and even if it existed, it was not a registered partnership firm; therefore, no suit could be instituted in the name of the firm by a
partner and all proceedings in the said suit therefore were void, which cannot be allowed to be availed of as a bona fide proceeding in a court
without jurisdiction.
O. 30 of the Code of Civil Procedure, 1908 has got certain rules for suits by or against firms and persons carrying on business in names other
than their own. R. 1 of that Order contains, inter alia, that any two or more persons claiming or being liable as partners and carrying on business in
India may sue or be sued in the name of the firm, if any, of which such persons were partners at the time of the accruing of the cause of action and
any Party to a suit may in such case apply to the Court or a statement of the names and addresses of the persons who were, at the time of the
accruing of the cause of action, partners in such firm, to be furnished and verified in such manner as the Court may direct and give to the partners
suing or being sued to sign, verify or certify, pleading or other document as the case may be, on behalf of all the Partners. S. 69 of the Indian
Partnership Act, 1932 (Act 9 of 1932), however, has a provision to the effect that no suit to enforce a right arising from a contract or conferred by
the Partnership Act shall be instituted in any court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged
to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a
partner in the firm.
Learned counsel for the appellant has urged before us that there is an apparent error of law in approaching S. 14 of the Limitation Act, which in
sub-S. (3) has made a particular mention of O. 23, R. 2 of the Code of Civil Procedure, 1908, and contains a rule to extend the period of
limitation by the period consumed in a proceeding bona fide in a court without jurisdiction. He has contended that a very narrow meaning is given
to the expression ''plaintiff and the ''defendant'' to exclude a suit by a person who himself had sued in the City Civil Court but had described himself
as a partner and invoked the advantage of O. 30 of the Code of Civil Procedure, 1908 by suing in the name of the firm hut when he detected that
the firm was not a registered firm and that the suit, for that reason, suffered a fatal defect decided to withdraw the same with permission to sue in a
proper court. He has also contended that the same narrow approach is found in the impugned judgment to the expression ''prosecuting with due
diligence another civil proceeding'', for, no one will be suing in a court without jurisdiction only to withdraw the suit for the purpose of extending the
period of limitation if he knew about the defects which were fatal and were likely to defeat the suit.
Learned counsel for the respondents has mainly contended that for invoking S. 14 of the Limitation Act, the previous suit must be found to be
between the same plaintiff and the defendant, for the same relief and the same cause of action. He has also contended that as held by the courts
and found so declared that a suit in the name of a partnership which is not registered is void and as Such no nest the proceeding in the City Civil
Court, initiated in the name of the firm thus is one, non existing, is void and not available at all for the purposes of computation thereof. Before we
conclude and slate why we find that there is force in the contention of the learned counsel for the appellant, we think it proper to advert to the
specific arguments of the learned counsel for the respondents on:
a. the requirements of S. 14 of the Limitation Act that the plaintiff and the defendant in the previous suit must be the same as in the latter suit.
b. the reliefs in the two suits must be the same; and
c. the cause of action of the two suits must not be found differing.
His contention as to why the essence of a proceeding being void and why the same be not considered at all for the purposes of S. 14 of the
Limitation Act, however, deserves a mere mention for its rejection. If we deal with this contention in any detail in this judgment, we do so in
deference to the tenacity of the learned counsel for the respondents.
A view of law as to the right to sue or being sued of a partnership firm which has remained unchanged throughout is that the registration of the
firm is a condition precedent to its right to institute a suit. If a firm was not registered at the time a suit was filed by it, the proceedings at its instance
are void. In K.K.A. Ponnuchami Goundar Vs. Muthusami Goundar and Another, a Full Bench of this Court has said as follows:
A suit is instituted when the plaint is filed in a court of competent jurisdiction. S. 69 says that a suit by a firm shall not be instituted until the firm has
been registered. The registration of the firm is a condition precedent to the right to institute the suit and the Court has no jurisdiction to proceed
with the trial when the condition precedent has not been fulfilled.
This view has remained unchanged and has now found expression also in some of the judgments of the Supreme Court, including in the case of Her
Highness Maharani Mandaisa Devi and others v. M. Ramnaram Pvt Ltd. and others AIR 1965 S.C. I718. We have, however, picked up this
judgment for the reason that having said so, it has clarified that a suit by or in the name of a firm is really a suit by or in the name of all its partners
and so also a suit against the firm is really a suit against all the partners of the firm. The Supreme Court has quoted with approval a passage from
the judgment in the case of Western National Bank of City of New York v. Perez, Triana and Co. (1891) 1 Q.B 304 at p. 14 which runs as
follows:
When a firm''s name is used it is only a convenient method of denoting those persons who compose the firm at the time when that name is used,
and a plaintiff who sues partners In the name of their firm in truth sues them individually, just HR much as if he had set out all their names.
The decree passed in the suit, though in form against the firm is in effect, a decree against all the partners. In Purushottam Umedbhai and Co. Vs.
Manilal and Sons, we get a candid elucidation of the purpose and object of the rules in O. 30 of the Code of Civil Procedure, 1908, in these
words:
(6) if was urged on behalf of the appellants that (1) the plaint as filed was a nullity. The suit, therefore, was competent. To bring on the record the
partners of the firm amounted to addition of new parties and if on the date these partners are added as parties and the period of limitation had
elapsed when the entire suit would be time barred (2) even if it be held that the plaint is not u nullity, neither the provisions of O.I., R. 10 nor those
of O. 6, R. 17 have any application to the case; (3) having regard to the provisions of S. 45 of the Indian Contract Act a suit by only one partner
or one promisee is bad to start with. There being within the period of limitation no suit by all the partners, any amendment, if allowed, would
convert the old suit Into a new suit and the new suit would be barred by limitation, if the amendment was allowed on a dale which was beyond the
period of limitation prescribed for such a suit; (4) if the amendment WHS allowed it would be a case of adding or substituting new plaintiffs and as
regards them it would be deemed to have been instituted when they were made parties. Reference In S. 22(l) Indian Limitation Act, was made in
this connection. In the present case, so far as the new plaintiffs were concerned, the suit was barred by time at the date when they were sought to
be made parties; (5) the circumstances of the case indicated that there was no suit in the eye of the law, nor was the plaint verified or signed as
required by law. Consequently, there was no proceeding before the Court in which any amendment could be sought and (6) even if it was held thin
the plaint was not a nullity the plaint had been signed and verified on behalf of the firm Manilal & Sons by Dunderdale on a Power of Attorney
executed by one of the partners only It was, therefore, not manifest that all the partners intended to sue. Furthermore, the Power of Attorney
executed in favour of Dunderdale by one of the partners could not be regarded as authorizing him to act on be half of the firm of Manilal & Sons.
Very great reliance was placed on the decision of Blackwell, J. in the case of Venkatenh Oil Mill Co. v. N.V. Velmahomed, AIR 1928 Horn.
191 where the learned judge held that the suit was brought by an entity which had no legal existence in the eye of Indian law and there being no
mode or Procedure whereby such an entity was permitted to sue in India, the suit, as framed, was not maintainable at all. It followed, therefore,
that the amendment asked for could not be treated as an application for the substitution of the individual persons who composed the entity which
the law did not recognize. This view of Mr. Justice Blackwell was not accepted by Beaumont, C.J. in the case of Amulukchand Mewaram v.
Babulal Kanala AIR 1933 Bom. 314 where he expressed himself as follows:-
I must confess that I have some difficulty in following both the reasons and the conclusions of the learned Judge In that case. It was a case of a suit
brought In the name of a firm carrying on business outside British India, and therefore, not justified by the terms of O. 30, Civil P.C. and the
learned Judge expressed the view that the plaintiff firm was a nun-existent entity. But the order which he subsequently made giving leave to amend
seems inconsistent with that finding,
He further held:
But I do not sec how O. 30 can affect the question of fact, whether a suit brought in the name of a firm in a case not within O. 30, is in fact a case
of misdescription of existing persons, or a case of a suit brought by a non-existent entity.
In the case of Hajee Sultar Hajee Pttr Mohmmed v. Khuslram Benafxllal I.R. (I952) I Cal. l53 the Coalcutter High Court did not accept the view
expressed by Blackwell, J. It referred to the following observation of Farewell L.J. in Saddler v. Whlteman (1910) 1 KB. 868.
In English law a firm as such has not legal existence. Partners carry on business both as principals and as agents for each other within the scope of
the partnership business: the firm name is a mere expression, not a legal entity, all though for convenience under O. 48.A. it may be used for the
sake of suing and being sued.
In the case of Mura Mohideen v. V.O.A. Mohamed AIR 1955 Mad. 294, the Madras High Court dissented from the opinion expressed by
Blackwell, J. and the learned Judges stated:
We are unable to agree with Blackwell, J. in his view that a foreign firm not being a legal entity which could as such file a suit under the Civil P.C.,
by itself determines the question whether the impleading of the members of that firm is the addition of a new party. The view of Blackwell, J.
appears to have been concurred in by two decisions reported in Neogl Ghose & Co. v. Nehal Singh AIR 1931 Cal. 770 and I.N. Chrttiar Firm v.
M.P.R.M. firm AIR 1935 Rang. 240 but we are unable to agree with the soundness of the reasoning in these decisions either of which do not
furnish any further reasons in support of the view of Blackwell. J.
The Madras High Court then concluded as follows:
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 part 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 provided the mistake was bona fide; vide O. 1. R. 10. C.P.C, Such an amendment docs not involve the addition
of it party so as to attract S. 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 nut this is far from saying that merely because the
law does not recognise the firm as being a legal entity the firm name could not indicate or designate the individuals composing the firm.
To sum up, the situation is analogous to a case where an individual who has an alias or an abbreviated name by which he is sometimes called
initially describes himself in that name but subsequently applies to have it recertified so as to describe in the manner in which he is most generally
known. There cannot be any doubt that by the correction in the name, a new plaintiff is not added to as to attract S. 22(l), Limitation Act. A trade
name cither of a person or a group of individuals carrying on business in partnership is in truth an alias for the person or the group.
Before the introduction of O. 30 in the CPC apparently suits were instituted, particularly in the moccasin fourth in the name of a firm or were
instituted against a firm the firm name and no objection was generally taken. Presumably this practice was largely based on the assumption that the
suit concerned was cither by all the partners of the Arm or against all the partners of the firm. If, however, an objection were to be taken that a suit
in the name of a firm was not maintainable because it had no legal entity, the courts would have to decide whether the suit had been instituted by
non existent persons. If so, the suit was not maintainable. In the case of Kmlurvhnnd Bahlravdas v. S. Agammal Shirram H.R. 17 Bom. 413 which
was before the introduction of O. 30 in the Code, the suit had been brought in the name of the firm Kondanmal Segarmal by its manager Segarmal
Shriram. The defendants objected that one Malamchand was also a partner in the firm and should be made a party. He was accordingly added us
a plaintiff on the 27th of January, 1988. The defendant then contended that the suit was barred by S. 22, Limitation Art. It wan held by the
Bombay High Court that it was a case of misdescription and not of non joinder for the action was brought in the name of the firm by its manager.
The introduction of O. 30 into the Code prevents such an objection being taken because it permits two or more persons carrying on business of
the firm to sue or be sued in the name of the firm but the firm must be carrying on business in India. The introduction of this provision in the Code
was an enabling one which permit led partners constituting a firm to sue or be sued in the name of the Arm. This enabling provision, however,
accorded no such facility or privilege to partners constituting a Arm doing business outside India. The existence of the Provisions of O. 30 in the
Code does not mean that a plaint filed in the name of a Arm doing business outside India is not a suit in fact by the partners of that Arm
individually.
S. 4 of the Indian Partnership Act, 1932, hereinafter referred to us the Act slates that:
Partnership is the relation between persons who have agreed to shun: the profits of a business carried on by all or my or them acting for all.
Persons who have entered into partnership with one in other are called individually ""partners and ""collectively"" ""a firm"" arid the name under which
their business is carried on is called the Arm name
It la clear from this provision of the Act that the word ""firm"" or the ""Arm name is merely a compendious description of all the partners collectively.
It follows, therefore, that where a suit is filed in the name of a firm it is still a suit by all the partners of the firm unless it is proved that all the partners
had not authorised the suit. A firm may not be a legal entity in the sense of a corporation or a company incorporated under the Indian Companies
Act but it is still an existing concern where business is done by a number of persons in partnership. When a suit is filed in the name of the Arm it is
in reality a suit by all the partners or the Arm. If O. 30 had not been introduced into the Code and a suit had been filed in the name of a Arm it
would not be a case of a suit filed by a non existent person. It would still be a suit by the partners of a Arm, the defect being that they were
described as a firm. In order to clarify matters a court would permit an amendment by striking out the name of he firm and replacing it with the
name of the persons forming the partnership. It would he a case of misdescription. Even it the provisions of O. 1, R. 10, and O. 6. R. 17. did not
strictly apply the amendment could he permitted under S. 153 of the CPC because it was not a case of either adding parties or substituting parties.
The High Court referred to a number of decisions to which no particular reference need be made but they do support the view taken by the High
Court that in the present case the plaintiff described in the plaint as the firm of Manilal & Sons was a mere misdescription capable or amendment
and not a case where a plaint had been filed by a non-existent person and therefore a nullity.
(9) We now refer to certain provisions of O. 30, C.P.C Order 30, R.1. C.P.C. stales:
(1) Any two or more persons claiming or being liable as partners and carrying on business in India may sue or be sued in the name of the firm if any
of which such persons were partners at the time of the accruing of the cause of action, and any party to a suit may in such case apply to the court
for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in such firm, to be
furnished and verified in such manner as the Court may direct.
(2) Where persons sue or arc sued as partners In the name of their firm under sub Rule (1), it shall, in the case of any pleading or other document
required by or under this Code to be signed, verified or certified by the plaintiff or the defendant, suffice if such pleading or other document is
signed, verified or certified by any one of such persons"". This rule enables any party to a suit filed in the name of a firm doing business in India to
apply to the Court for a statement or the names and addresses of the persons who were at the time of the accruing of the cause of action partners
in the firm to be furnished and verified in such manner as the Court may direct. O. 30, R. 2. states:
(l) Where a suit is instituted by partners in the name of their firm, the plaintiffs or their pleader shall, on demand in writing by or on behalf of any
defendant, forthwith declare in writing the names and places and residence of all the persons constituting the firm on whose behalf the suit is
instituted.
(2) there the plaintiffs or their Pleader fail to comply with any demand made under sub-R.(l), all proceedings in the suit may, upon an application
for that purpose, be staled upon such terms as the Court may direct.
(3) Where the names of the partners are described in the manner referred to in sub-Rule (1), the suit shall proceed in the same manner, and the
Name consequences in all respects shall follow, as if they had been named as plaintiffs in the plaint:
Provided that all the proceedings shall nevertheless continue in the name of the firm.
This makes it obligatory, in the case of a suit instituted by the partners in the name of the firm, on demand, in writing by or on behalf of any
defendant, to declare in writing the lames and places of residence of all the persons constituting the firm on whose behalf the suit is instituted. If the
plaintiffs fail to comply with the demand made under sub-R. (1) of this Rule, all the proceedings in the suit may be stayed on such terms as the
Court may direct, Under sub-R. (3) If the names of the partners arc declared in the manner referred to in sub-R. (l) the suit shall proceed in the
same manner and the same consequences in all respects shall follow as if they but been named in the plaint, provided that all the proceedings shall
nevertheless be continued in the name of the firm. R. l of O. 30 is a general provision, R. 2, however, is confined to a suit instituted by. partners in
the name of the firm. It is clear from this rule that although the suit is filed in the name of the firm a disclosure has to be made, on demand in writing
by or on behalf of any defendant, of names and places of residence of all the persons constituting the firm on whose behalf the suit is instituted. The
provisions of R. 2 would indicate that although the suit is filed in the name of a firm, it is nonetheless a suit by all the partners of the firm because if a
disclosure of the names or the partners is asked for by any defendant on such disclosure, the suit shall proceed as if the partners had been named
as plaintiffs in the suit, even though the proceedings shall nevertheless be continued in the name of the firm. It is clear, therefore, that the provisions
of O. 30 R. 1, and R. 2 are enabling provisions to permit several persons who arc doing business as partners to sue or be sued in the name of the
firm. R. 2 would not have been in the form it is if the suit instituted in the name of the firm was not regarded as, in fact, a suit by the partners of the
firm. The provisions of these rules of O. 30 being enabling provisions, do not prevent the partners of a firm from suing or being sued in their
individual names. These rules suing or being sued in their individual names. These rules also do not prohibit the partners of a firm suing in India in
their names individually although they may be doing business outside India. Indeed, this was not disputed on behalf of the appellant. Since,
however, 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 to 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 to 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. It seems, therefore, that a
plaint filed in a court in India in the name of a firm doing business outside India is not only by itself a nullity. It is a plaint by all the Partners of the
firm with a defective description of themselves for the purposes of the Code of Civil Procedure. In these circumstances, a civil court could permit
under the provisions of S. 153 of the Code (or possibly under O. 6, R. 17. about which we say nothing), an amendment of the plaint to enable a
proper description of the plaintiffs to appear in it in order to assist the court in determining the real question or issue between the parties. Strictly
speaking O. 1, R. 10 (l) has no application to a case of this kind because the suit has not been instituted in the name of a wrong persons nor is it a
case of there being a doubt whether it has been instituted in the name of the right plaintiff. The provisions of O. 1, R. 10 (2) also do not apply
because it is not a case of any party having been improperly joined whose name has to be struck out or a case of adding a person or a party who
ought to have been pointed or whose presence before the court is necessary in order to enable the court effectually and completely to adjudicate
upon and settle all the questions involved in the suit. The suit has been from its very inception a suit by the partners of the firm and no question of
adding or substituting any person arises, the partners collectively being described as a firm with a particular name.
These authorities and others, which need not he added and if added, will only; show the large number of cases decided on the point leaders to
irresistible conclusion that O. 30 in the Code only enables a partner to sue in the name of the firm and all or other partners need not join him as
plaintiffs. A suit in the name of a partnership firm is a suit by all the partners individually, but for availing the advantage of the rules under O. 30 of
the Code, the firm should be registered firm of the partners and if ft is not a registered firm of the partners the suit is void, in the sense that it is not
instituted by a competent person or in the name of a competent person. If under misapprehension the persons doing business as partners wrongly
sue in the name of a firm, they only do so at the risk of being non-suited as the suit in the name of the firm, which is not registered,'' shall not he
competent; They must, in such a case, sue in their individual names and not in the name of the firm. This, however, will not rob a partner or any
other person, who is claiming through the partners from their right to sue and they will always he entitled to sue in a court of law subject to the laws
of limitation in their individual capacity. We are not proposing in this case to decide actually what will be the fate if after the institution of the suit it is
detected that the suit has been instituted in the name of a wrong person, that is to say, the firm, when it should nave been instituted by the partners,
in their individual capacity, whether the court''s general power to amend as under S. 153, C.P.C. shall be available and by such amendment proper
plaintiff may be brought on record to assist the court or it will be a case instituted in the name of a wrong person attracting O. 1, R. 10 (1) of the
Code, of Civil Procedure or will be taken to be a suit jointly in the name of the partner who had chosen to sue in the name of the firm as well as the
firm and the suit instituted in the mime of the firm declared void only to permit continuance of the suit in the name of the partner if there is no defect
otherwise, for, we shall presently see thai the defect in the suit created on account of the suit having been filed in the name of the firm is a defect
going to the root of the jurisdiction of the court and if it is a defect going to the root of the jurisdiction of the court, it is a suit without jurisdiction
and S. 14 of the Limitation Act is attracted only in a suit instituted without jurisdiction. Farmers of the rules of procedure have asked for adherence
to the rules only for the purpose of promoting the cause of justice and not to deny to a genuine suitor the benefits of his legal rights. There is a
procedure of checking at the outset any plaint and reject the same if it is found amongst others barred by any law as under O. 7, R. 11 of the Code
of Civil Procedure. Who may sue as a plaintiff and who may be sued as defendants is dealt with under the rules under O. 1 of the CPC and R. 10
in particular says where a suit has been instituted in the name of a wrong person as plaintiff or where it is doubtful whether it has been instituted in
the name of the right plaintiff, the court may at any stage of the suit if satisfied that the suit has been instituted through a bona fide mistake and that it
is necessary for the determination of the real matter in dispute so to do or any other person substituted or added as plaintiff upon such terms as the
court thinks just pass suitable orders. Sub-R.(2) of this rule gives to the court power to strike out or add parties either upon or without the
application of either part and consequential amendment of the plaint is contemplated under sub-R. (4) thereof. Strictly, whether the matter would
fall under R. 10 of the Code in a case where a suit is instituted by one of the partners in the name of the firm or not the provisions in these rules
read with S. 153 of the Code as elucidated by the Supreme Court in Purushottam Umedbhai and Co. Vs. Manilal and Sons, appear fully to take
care of defects of this kind.
Learned counsel for the respondents has drawn our attention to some of the authorities of the Supreme Court, such as one in the case of
Gambhir Mal Pandiya Vs. J.K. Jute Mills Co., Ltd., Kanpur and Another, which does not appear to be relevant upon the question before us as it
is on the question how in a case, in which the plaintiff sued only the firm, all partners would be bound. The Supreme Court analysis in this behalf is
recorded in these words:-
(3) From the above analysis, it is clear that a plaintiff need sue only the firm, but if he wants to bind the partners individually he must serve them
personally, for which purpose he can gel a discovery of the names of partners of the firm, Persons served Individually may appear and file written
statements, but the proceedings go on against the firm only. They may, however, appear and plead that they are not partners and were not partners
when the cause of action arose. But even if no other partner appears, there may be a decree against the firm if the firm has been served with the
summons. The gist of O.S. 30 thus is that the action proceeds against the firm and the defence to the action by persons admit ling that they are
partners is on behalf of the firm. Persons sued as partners may. However, appear and seek to establish that they are not partners or were not
partners when the cause of action arose but if they raise this special plea they cannot defend the firm. This was laid down in connection with the
analogous provisions of the English Rule in Weir and Co. v. Mevicar and Co. 19252 KB 127. Partners appearing and admitting their positing us
partners can only defend the firm, because the suit continues in the firm''s name. The law is thus not concerned with a fight between the partners
inter se, and an action between the partners is not to be tried within the action between the firm and the plaintiff. Of course, the partners who admit
that they are partners need not raise a common defence. They may raise inconsistent defences, but all such defences must be directed to defend
the firm and the plaintiff must surmount all such defences. See Ellis v. Wedson (1889) 1 OB. 7I4. The purport of the Rules as well as the two
English cases which have correctly analysed the Rules on the subject (the English and the Indian Rules being alike) is that the partnership is sued as
a partnership and though the partners may put in separate defences, those defences must be on behalf of the firm. If some of the partners do not
appear, those that do, must defend the firm, but if no proper defence is raised by them, the plaintiff cannot be deprived of a judgment. The
judgment and decree thus obtained are executable against the partnership assets. This brings in the provisions of O. 21, R. 50 of the Code.
The Judgment of the Supreme Court in Seth Loonkaran Sethiya and Others Vs. Mr. Ivan E. John and Others, only states that S. 69 of the
Partnership Act, 1932 is mandatory in character and its effect is to render a suit by a plaintiff in respect of a right vested in him or acquired by him
under a contract which he entered into as a partner of an unregistered firm, whether existing or dissolved, void. In other words, a partner of an
erstwhile unregistered partnership firm cannot bring a suit to enforce a right arising out of a contract falling within the ambit of S. 69. The relevant,
however, for us as we have said earlier, is the question whether on the stale of law in the case of a suit of this kind S. 14 of the Limitation Act is
attracted or not. If we are satisfied that the suit although in the name of the firm was by Prasanchaud, who had the illusion that he was a partner and
that the suit could be instituted in the name of the firm and the suit instituted by him suffered from a detect taking the defect of jurisdiction and he
prosecuted it in good faith and the cause of action of the instant suit is not different from the earlier suit, we may hold that S. 14 of the Limitation
Act is attracted. In Surjit Singh v. Munsha Singh AIR 1977 SC 640 the Supreme Court has mentioned the three conditions in these words:-
(1) that the plaintiff must have prosecuted the earlier civil proceeding with due diligence;
(2) the former proceeding must have been prosecuted in good Faith in a court which from defect of jurisdiction or other cause or a like nature was
unable to entertain it; and
(3) the earlier proceeding and the later proceeding must be based on the same cause of action.
Reading the words ""or other cause of a like nature"" in sub-S. (1) of S. 14 of the Limitation Act, the Supreme Court has said in this judgment as
follows:
Now the words ""or other cause of a like nature"" which follow the words defect of jurisdiction in the above quoted provision arc very important.
Their scone has to be determined according to the rule of ejusdem Generls. According to that rule, they lake their colour from the proceeding
words ""defect of jurisdiction"" which means that the defect must have been of an analogous character barring the court from entertaining the
previous suit.
In sum, when a partner, whether during existence or after dissolution of the partnership, instituted a suit in the name of the firm that was not
registered, the suit was/is a suit by the partner in his individual capacity, but his suing in the name of the firm inflicted/inflicts the suit by a fatal defect.
The suit in such a case must fail as it was is instituted in the name of a firm which was/are registered. The defect in the suit is one which could be
corrected either by other parities joining the sole partner who filed the suit in the name of the firm or by substituting the right plaintiff, in place of the
wrong name of the firm or by amending the plaint under S. 153 of the CPC to remove the defect in the name of the suit. If nothing is done to
remove this defect at the threshold, the suit will have a defect analogous in character of a defect of jurisdiction.
Learned counsel for the respondents has urged before us that the plaintiff being the sole proprietor in the instant case, the earlier. suit was not
the same either in character or in respect of the cause of action since it was instituted in the name of a firm. He has however, not been able to deny
the fact that when the alleged loan had been advanced a partnership had existed. It is on the record of this case that the partnership ceased to exist
and Prasanchand who instituted the previous suit as the partner and the instant suit as the Proprietor, became the sole proprietor of the firm before
the institution not only of the instant suit, but also of the previous suit. If he knew that he was the sole proprietor, he was expected to sue in his own
name, but he sued as a partner in the name of the firm and in doing it, fell in the teeth of the bar Under S. 69 of the Partnership Act, 1932. We are
inclined, on the facts of the instant case, to take the view that hut for the defect of suing in the name of the firm, for which reason alone the previous
suit had to be found wrongly instituted Prasanchand sued in his individual capita as a suit in the name of the firm of partners is also a suit by the
partners individually and the later suit which he has instituted in his own name is not by any different plaintiff. The main relief in the previous suit is
the declaration, the consequential relief being confirmation of possession. In the latter suit, the main relief is the declaration, the consequential relief
being recovery of possession. In the later suit, however, additional reliefs are asked for, for which it appears there are additional pleadings of fact.
Considering what cause of action means for the purposes of exercising the original jurisdiction under Clause 12 of the Letters Patent of this
Court, which cause of action alone is relevant for S. 14 of the Limitation Act and not how many reliefs are asked for in the previous suit and how
many reliefs are asked for in the later suit, a Bench of this Court in the case of K. Murugesan v. Seethalakshmi 1992-1- L.W. 277, which has been
later reiterated in Tuticorin Alkali Chemicals and Fertilizers Ltd. v. M/s. Cochin Silicate & Glass Industries I992-1I-M.L.J. 376=1992-1-L.W.
308 has staled us follows:-
The cause of action is a fact, which if traversed would he necessary for the plaintiff to prove in order to support his right low judgment of the court.
In other words, it is a bundle of facts which taken with a law applicable to them gives the plaintiff a right to the relief against the defendant.
In K. Murugesan v. Seethalakshmi 1992-1-L.W. 277 a passage from a judgment of the Bombay High Court in the case of Baroda Oil Cakes
Traders v. Purshottam AIR 1954 Bom. 491 is quoted, which reads as follows:-
It is however, important to bear in mind that the bundle of facts which constitute the cause of action in a civil suit does not and is not intended to
compromise every fact which may be proved in evidence, It is only material facts which must he proved by the plaintiff before he can obtain a
decree that constitute the cause of action. Facts which the plaintiff may allege incidentally and facts which may be brought in evidence as res gestae
would not necessarily constitute a part of the cause of action. The distinction between facts which are relevant and material and those that are
incidental and material is sometimes not easy to be down, but the said distinction is nevertheless important for the purpose of deciding which facts
constitute the cause of action and which arc not included in it.
When we apply the above test to the facts of this case, we have no manner of doubt that the material facts in the two suits arc common. The most
dominant issue of fact in this case would be whether there has been any delivery of a motor vehicle on the basis of a Hire Purchase Agreement by
the plaintiff to the defendants or not, which was also the main issue in the previous suit. It is not possible on the facts of the instant case, therefore,
to hold that the cause of action in the two suits is not the same.
Learned counsel for the respondents has cited some judgments on the question whether leave to withdraw a suit of this kind can be granted
and relied upon a judgment by a learned single Judge in T. Savariraj Filial v. M.S.R.S.S. Vastrad And Company AIR 1990 Mad.198 = 1989-2-
L.W. 418 which has held that a suit not complying with the requirements of S. 69 (2) of the Partnership Act is a void suit and that it is not a formal
defect of the kind which can be taken notice of under O. 23, R. 1(3) of the CPC for granting liberty to file a fresh suit. He has in his judgment
referred to the decisions which have held that a suit hit by S. 69(2) is not maintainable, because it is a mandatory requirement. He has expressed
the view that no order under O. 23, R. 1 (3), C.P.C. can be made in such a suit although he has taken notice of the judgment of a Division Bench
of this Court in Buhari Trading Co., v. Star Metal Co., AIR 1983 Mad. 150 and distinguished the view expressed in it that a suit which was sought
to be withdrawn on the ground that the plaintiff therein was an unregistered firm, but was dismissed would not be a bar to file a fresh suit on the
same cause of action after the firm got registration, for, according to him, this decision proceeded on the basis that the suit earlier filed was nonest
in the eye of law. In a recent judgment in the case of Selvam Estates v. Thangapandia Maharajan & others 1991 T.N.L.J. 107, a learned single
Judge has expressed a similar view stating as follows:
I have carefully considered the rival submissions made by the learned counsel for the respective defendants. The above review of the case law on
the subject shows that the views held by practically all the High Courts in India is that the registration of the firm is a cognition precedent to its right
to institute a suit of the nature mentioned in S. 69 (2) of the Partnership Act and that the registration after the institution of the suit cannot cure the
defect of non registration before the date of the suit. It follows from this, that the plaintiff is not entitled to withdraw the present suit and file a fresh
suit on the same cause of action. Since in my opinion, the defect pointed out by the defendants is not a formal defect but goes to the root of the
matter. Hence, 1 have no jurisdiction to Proceed with the trial with the condition precedent to the right to institute a suit has not been fulfilled in this
case. Hence the question or withdrawing a void plaint does not arise since it is not a formal defect. If the plaint is treated as a void plaint the
question of granting permission does not arise at all. As stated above the plaint was filed on 9.2.1987. However, the plaintiff has filed the present
suit and also impleaded other defendants and obtained various interim orders on the basis of a void plaint. The defendants have been made to incur
legal expenses and oppose the plaint and other interim applications, time and again on the basis of a void plaint. Hence, in my opinion, the
defendants have to be compensated with costs. I order a sum of Rs. 1,000/- to the first defendant and Rs. 1000/- to defendants 3 to 5 as costs.
Thus I hold that the suit filed is void and hence the permission to withdraw the suit with liberty to file a fresh suit on the same cause of action is not
necessary. Both the application and the suit are dismissed with costs as stated above. All the interim orders passed by this court pending suit, are
hereby dissolved.
The Division Bench Judgment in the case of M/s. Buhari Trading Company v. M/s. Star Metal Company 96 L.W. 20 = 1982 T.N.L.J. 160,
however, has been delivered in a case where a firm of partnership registered on 30.11.1981, had filed a suit invoking the court''s admiralty
jurisdiction. Prior to it, it had filed a suit invoking the same jurisdiction when the firm was unregistered and in that suit filed an application for an
order of arrest of a vessel in the Port of Madras. Before the filing of the counter, however, the counsel appearing for the plaintiff represented that
he wished to withdraw the suit. Subsequently, however he made the endorsement on the plaint ""The suit is not pressed"". The court, accordingly,
dismissed the suit. What happened thereafter is noticed in the judgment of the Division Bench as follows:-
After the withdrawal of the suit, on the same day, the plaintiff-respondent herein presented the present suit after the firm was registered under the
Partnership Act, Along with the plaint, again the plaintiff filed application No. 4126 of 1981 praying for an order or arrest of the said vessel. A
counter affidavit had been filed in which it was contended that consequent on the withdrawal of the prior suit, the plaintiff is precluded from filing
the second suit on the same subject matter. In reply to this counter affidavit, the plaintiff stated the circumstances under which he withdrew the
earlier suit. It was stated that at the time when the previous suit was filed the firm was not registered and on the assumption that a registration under
the Income Tax Act would he sufficient for filing a suit by the firm, the earlier suit was Hied, but coming to know that the registration under the
income tax Act was not sufficient to sue in the name of the firm, the plaintiff applied for registration of the firm, under the Indian Partnership Act on
28.11.1981 and it was registered on 30.11.1981. and therefore, the earlier suit C.S. No. 7548 of 1981, was withdrawn. It was further contended
that the unregistered firm in law a non-entity and that, therefore, the filing of the earlier suit or the withdrawal of the same, did not bar the filing of
the second suit. We are mentioning these facts in order to show what the parties understood by the words ""not pressed"" and why the earlier suit
was withdrawn. A written statement was filed, by the defendant in which again a plea that the plaintiff had abandoned the earlier suit and since no
permission was given to the plaintiff to file a fresh suit the second suit was barred under O. 23, R. 1, C.P.C. On this pleading two issues, as staled
above, were raised and dealt with as preliminary issues by the learned judge. The learned Judge held that the suit filed by the unregistered firm was
nonest in the eye of law and therefore on 24.11.1981 when the earlier suit was instituted, the present plaintiff was not in existence and that
therefore there could be no room for the contention that CS. No. 54K of 19KI was instituted by the present plaintiff The learned Judge further
observed that if the present plaintiff has not instituted the former suit, then it is obvious that O. 23, K.1, C.P.C. Shall not remain an obstacle in the
way of the present plaintiff maintaining the present action.
The judgment of the Division Bench proceeded to clear a doubt as lo how a suit by an unregistered firm, which was not maintainable under S. 69
(2) of the Partnership Act was permitted to be withdrawn and found as follows:-
In the interim application In Application No. 4l2 t of 1982, the defendant raised the plea of bar of suit by reason of the withdrawal of the earlier
suit. In reply to the same, the plaintiff contended that the withdraw the earlier suit because, it was considered that a suit by an unregistered firm was
not maintainable and in fact, according to the plaintiff, the old firm had no legal entity and it shall be deemed lo have been born only when it was
registered under the Partnership Act. In those circumstances, there could be no doubt that the plaintiff in this case withdrew the earlier suit because
of the possible objection that the suit was not maintainable by an unregistered firm. That is how the learned Judge also proceeded in considering
the first issue and accordingly we have to proceed also on that basis and not as if the earlier suit was not pressed und therefore was dismissed.
Under O. 23, R. 1, C.P.C., the plaintiff is untitled, at any stage of the suit, lo abandon his suit or abandon a part of his claim for which purpose an
application may be filed. If the court is satisfied that the suit must fail for some formal defect or that there was sufficient ground for allowing the
plaintiff to institute a fresh suit for the subject matter of a suit or port of a claim. it may, on such terms as it thinks fit, grant the plaintiff permission to
withdrew from such suit or abandon such part of a claim with liberty lo institute a fresh suit in respect of the subject matter of such suit or such part
of a claim. If the plaintiff withdraws without such permission of the court to file a fresh suit, he shall be precluded from instituting any fresh suit in
respect of such subject matter or such part of the claim, In this case, no leave has been prayed for by the plaintiff for instituting a fresh suit and,
therefore, the question for consideration is, whether the plaintiff shall be deemed to have preferred an earlier suit and withdrawn which will
preclude him from instituting a fresh suit in respect of the same subject matter or such part of the claim.
In answering the above question, the Division Bench look notice of an earlier judgment of this court in re Arunagiri Mudahar and another Slodart,
J. AIR 1936 Mad.697 - 44 L.W. 247 in which case a revision against the permission granted by the court below to an unregistered firm to file a
fresh suit subsequently after registration was disposed of by a learned single Judge of this court with the observation that the withdrawal of a suit by
partners who have not been registered as a firm is no bar to a suit tiled on the same cause of action by the same persons when and if they got
themselves registered as a firm under the Partnership Act. The learned Judge also observed:
I do not sec any reason why the unqualified dismissal of a suit filed by a number of persons because they are a firm and are not registered under
the Partnership Act, should be any bar to this institution of a suit on the same cause of action by the same persons when they have got themselves
registered
The Division Bench took notice of several judgments of different courts, but finally said,
it may be seen that in all these cases, the latter suit was held not barred though for different reasons. In some cases, the suit was held not liar red on
the ground that the plaintiff itself was incompetent to file the suit and therefore there is no question of the Court granting permission to the plaintiff to
file a fresh suit and in such circumstances, the Court can only dismiss the suit and could not consider even the claim for filing a fresh suit. The other
reason, found in some of these cases, is that the unregistered firm and the registered firm are technically different persons and therefore even an
unqualified dismissal of the suit filed by the unregistered firm could not be considered as a bar for the institution of a fresh suit on the same cause of
action. The third line of reasoning was that when the earlier suit was dismissed on the ground that the suit is barred under S. 69 (2) of the
Partnership Act, there was no determination of the cause of action or the subject matter of the suit and there was no adjudication finally or
otherwise and, therefore, the earlier order could not be considered either as estoppel or res Judicata and the subsequent suit is maintainable. Of
course, this argument is to be restricted to a plea of estoppel or res judicata and may not be applicable when we consider the specific rule in O.
23, R. 4, C.P.C. But suffice it to say that the dismissal of a suit when it was sought to be withdrawn on the ground that the plaintiff therein was an
unregistered firm, docs not bar the filing of a fresh suit on the same cause of action after the firm gets itself registered and for doing so no
permission is needed.
The cases that are decided and reported and brought to our notice reiterate:
(i) A suit by an unregistered firm is void/nonest.
(ii) Whether any permission is granted to sue afresh and with permission the suit is permitted to be withdrawn is not a relevant question for the
maintainability of the subsequent suit filed by the same firm after registration. The dismissal of a suit when it was sought to be withdrawn on the
ground that the plain tilt therein was an unregistered firm does not the filing of fresh suit to the same cause of action after the Firm gets itself
registered and for doing so no permission is needed.
The cases of this kind, however do not give any help in understanding problem of a suit by a partner in the name of the firm under O. 30 of the
Code of Civil Procedure, which is found hit by the rule in S. 69 (2) of the Partnership Act and so it is withdrawn or abandoned by the partner to
seek remedy in his individual capacity. We have already seen that a suit in the name of a firm is the suit by all the partners in their individual
capacity. Order 30 of the CPC enables, however, only one of the partners to sue in the name of the firm, but the suit so instituted is a suit not by
him alone or by the firm, which is a corporate entity only, but by and on behalf of all other partners as well. A person who thought partnership
existed and filed a suit in the name of the firm only to find that there was no partnership is existence and that he alone was entitled to the relief
sought for on the basis of the cause on which he had brought the action in the court, as we have noticed earlier, must have a way to correct the
mistake and such ways are indicated in the Rules that arc found in O. 1 of the CPC or S. 153 of the Code. He has got the option to bring to the
notice of the court his mistake that the suit has been instituted in the name of a wrong person as plaintiff or that it is doubtful whether it has been
instituted in the name of the right person and get the name of the right person substituted of added as plaintiff upon such terms as the court thinks
just or can amend the plaint to remove the defect in the form and the name of the plaintiff. A defect of this kind, in our opinion, is the defect of form
only, which can be corrected under O. 1, R. 10 of the CPC or by the amendment of the plaint and the name of the plaintiff. This can also be a case
for seeking permission of the court to abandon or withdraw the suit to sue afresh because the suit instituted by a partner In the name of the firm is
not a suit by the firm until the firm is registered, but it is difficult to say that it is not a suit by him if he so chooses to proceed. The void or truest
nature of a suit can be found out:
(i) by noticing the statements in the plaint; and
(ii) by looking into the facts on objections by the defendant.
While in the former, there may not be any adjudication at all, but a determination on the objections of a defendant that the suit is not maintainable
or is barred under a particular provision of law cannot be a mere formality. It shall be always some kind of adjudication and a judgment of the
court on the contentions of the parties. If that not be so, there can be no revision or appeal against any order deciding whether the suit is barred
under S. 79 (2) of the Partnership Act or not. The respondents herein can not invoke this court''s revisional jurisdiction against the order of the
learned City Civil Court Judge in O.S. No. 1080 of 1977 unless there is an order which was affected the parties. The above view that we have
taken alone will explain how when the plaintiff would apply for the withdrawal or to abandon the claim the court would see who has instituted the
suit and when the court is satisfied:
(i) that the suit must fail by reason of some former defect; or
(ii) that there arc other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim it may, on
such terms as it thinks fit, grant the plaintiff permission to withdraw from such or abandon some part of the claim with liberty to institute a fresh suit
in respect of the subject matter of such suit or such part of the claim.
This the court can do only after the institution of a suit as against all or any of the defendants. The Court cannot do any such thing before the
institution of the suit. The void or nonest nature thus of a suit instituted by a partner in the name of an unregistered firm has to be understood not as
something nonexistent at all, but as something which was rendered non existent for a defect that was found inflicting it. The cases decides by this
Court, in which the plaint is returned under O. 7, R. 10, C.P.C. or dismissed under O. 7, R. 11, C.P.C. however arc orders of competent and
proper court. The Bench decision of this Court in the case of Thadi Chandrayya and Others Vs. Vaitla Seethanna and Another, and the decision of
a learned single judge in the case of Rajaram Reddy and Another Vs. Kesava Reddiar and Another, the reform arc of no help is understanding the
basic concern of the court in a suit which has a defect, which can be cured. A defect which cannot be cured is attached to the entertain ability of a
suit. A defect which is found after adjudication gets attached to the maintainability after such adjudication. Courts have always drawn a distinction
between cases where there is an inherent lack of jurisdiction apparent on the face of record and cases where it is doubtful or at least not so parent,
whether the court possesses jurisdiction or not. Where there is total lack of jurisdiction, nothing can confer the same on the court and objection to
jurisdiction cannot be waived. Therefore even if such objection has not been raised by any party, the entire proceeding of the court from the very
initial stage is without jurisdiction and void. Where, however, there is no total lack of jurisdiction, but, on the contrary, the averments in the plaint if
not challenged manifestly bring the case within the jurisdiction of the court, in which it is filed, its proceedings are perfectly within jurisdiction and
want of jurisdiction in such case can rightly be waived. In other words, this kind of defect a jurisdiction is not fundamental in character and does
not amount to anything more than a mere irregularity in the exercise of jurisdiction. This was the view expressed by us in The Food Corporation of
India v. M/s. Mayavaram Financial Syndicate Judgment dated 25.1.1993 in O.S.A. No. 212 of 1986, since reported in 1993-2-L.W. 453, and
this view will alone guide a court in deciding whether on the peculiar facts and circumstances of a particular case the defect is one which could not
have been cured at all or it was a defect which could have been cured. Since we have already held that the defect in the suit of Prasanchand was a
curable defect as held by the Supreme Court in Purushottam Umedbhai and Co. Vs. Manilal and Sons, we hold that the only correct approach will
be to accept that the plaintiff/appellant had filed the suit, O.S. No. 1080 of 1977 in a wrong name and thus has committed an error which could
have been cured. The contentions, however, shall not be completely answered unless we take notice of the words in S. 14 of the Limitation Act,
i.e., ""proceeding bona fide in court without jurisdiction"" and has been prosecuting with due diligence another civil proceeding"" as well as"" is
prosecuted in ""good faith"" in a court"". S. 2 (h) of the Limitation Act has got a definition of good faith to mean nothing shall be deemed to be done in
good faith which is not done with due care and attention. Due care and attention, it seems is expressed in S. 14 as the diligence besides good faith
and in the title of the section, the expression bona fide is retained to rule out any possibility of a careless litigant taking advantage of S. 14 or the
Limitation Act who first instituted a suit in a wrong court or with a defect that would make the suit or the proceeding incompetent and then brought
the case in a proper court taking advantage of S. 14 of the Limitation Act. Facts arc not disputed. When the previous suit was filed the partnership
was not in existence. It had been dissolved. But it still could be doubtful whether with respect to a claim of the partnership the suit had to be
instituted in the name of the partnership or in the name of the plaintiff who alone had survived with the interest that was the cause of action. It is
obvious that sufficient care had not been taken at least to know whether the name of the partnership at all was necessary on the facts of the instant
case for instituting a suit against the defendants, and in the absence of registration whether the name of the partnership could have been used at all
as the plaintiff. Only on that basis, however, to say that the plaintiff was utterly negligent when he instituted the suit in the name of the dissolved firm
or in the name of an unregistered firm will be too harsh a conclusion to defeat a case without being adjudicated upon; and allow a person who
otherwise can be found liable for action to escape. We do not want to comment upon the issues of fact, which are not gone into at all by the
learned single judge, for, if we say so, we may prejudice one or the other party, but a cursory look on the facts that have been brought on the
record reveal that much can be said as to at least a part of the claim that the defendants/respondents appear to admit and their case that they paid
and in token thereof an agent of the plaintiff issued a receipt, requires a careful examination.
In view of what we have found above, we are inclined to hold that S. 14 of the Limitation Act is fully attracted in the instant case. It is so
attracted notwithstanding the fact that the order of the subordinate judge permitting the plaintiff to withdraw the suit with liberty to sue afresh is
ignored and the suit is taken as dismissed as it was instituted in the name of a firm which was not registered. S. 14 of the Limitation Act will be
invoked not withstanding whether the suit before the subordinate judge ended by an order of withdrawal or by an order of dismissal. There is no
dispute before us that if S. 14 of the Limitation Act is applied, the instant suit is in time. For the reasons above, we allow the appeal and set aside
the finding in this behalf recorded by the learned single judge in his judgment, and accordingly, the judgment dismissing the plaint. Since, however,
we nave found that many other issues of fact are required to be adjudicated except the two, which have been decided, one which is not under
challenge before us, and the other which we have reversed, we remit the case to the trial court for a further hearing in accordance with law and
decisions of all the issues of fact and law except the two issues aforementioned. We find no merit in the Civil Revision Petition (C.R.P. No. 581 of
1982). The Civil Revision Petition is dismissed. On the facts of this Case, however, there shall be no order as to costs.