Sri Ayyappan Bleaching Factory vs Family Manager, M. Palaniappan

Pratap Singh, J.—This civil revision petition is directed against the judgment in A.S. No. 140 of 1985 on the file of District Judge, Periyar

District at Erode, confirming the judgment in O.S. No. 732 of 1982 on the file of the District Munsif, Erode.

The short facts are: The respondent had filed suit against the revision petitioner for money due on accounts. That was resisted by the revision

petitioner on many grounds. He contended that the suit was not maintainable, and that the plaintiff was not a proprietary concern. After trial the

learned District Munsif had rejected the contentions put forth by the defendant and had decreed the suit. Aggrieved by the same, the defendant had

filed appeal in A.S. No. 140 of 1985. After hearing the parties, the learned District Judge had dismissed the appeal and had confirmed the

judgment of the trial court. Aggrieved by the same, the defendant has filed this revision.

Mrs. S. Subbulakshmi, the learned Counsel appearing for the revision petitioner would submit that the suit has been filed in the name of wrong

person and on that score it is liable to be dismissed. She would submit that the suit was filed as if the plaintiff is a proprietary concern. But the

evidence let in during trial had disclosed that the plaintiff is a Registered Partnership Firm. But yet the trial court had decreed the suit. She would

further submit that in the appeal amendment of plaint was sought for in I.A. No. 310 of 1986 and despite objection, it was allowed and even after

amendment, the suit still remains not maintainable inasmuch as, after the amendment, the plaintiff is the family manager whereas Ex.A-22 would

show that it is a registered partnership firm and hence this suit continues to be one liable to be dismissed, as not maintainable. Per contra, Mr. S.

Jagadeesan, the learned Counsel appearing for the respondent would submit that the dealings were admitted and no prejudice is caused to the

defendant by the amendment of the name of the plaintiff.

I have carefully considered the submissions made by rival counsel. The plaintiff, as per the original plaint, before amendment, was Sami Colour

Company by Proprietor M. Palaniappan. In the written statement in paragraph 4, it is averred as follows: ""the defendant does not admit that the

plaintiff is a proprietary concern and the plaintiff is bound to prove the same."" In paragraph 2 of the written statement, it is averred as follows: ""This

suit as framed by the plaintiff is not maintainable in law and therefore, it is liable to be dismissed in limine"". During trial, the name of the plaintiff is

not amended. During the time when appeal was pending, a petition was filed in I.A. No. 310 of 1986 praying for amendment of the name of the

plaintiff in the short cause title and in the long cause title. The amendment sought for was to delete the description of the plaintiff and substitute the

following, which translated into English reads as follows: ""Family Manager M. Palaniappan, Sami Colour Company"". In the long cause title, the

amendment sought for, which translated into English reads as follows: ""Family Manager M. Palaniappan, aged 50, father''s name Muthusami

Mudaliar, Sami Colour Company, Easwaran Koil Street, Erode.

In the affidavit filed by M. Palaniappan in support of the application in I.A. No. 310 of 1986 he has stated as follows: ""The respondent has filed

the above appeal and has raised a technical plea that the description of the plaintiff is wrong and that the frame of the suit is defective. So, I have

come forward with this petition praying for an amendment of the plaint to avoid the technical objection."" Then, in paragraph 3 of the affidavit, he

has stated as follows: ""The business Sami Colour Company by name Sami Colour Company is a business of the family consisting of myself and my

two sons and so, it is a joint family concern. So, the plaintiff ought to have been described as family Manager Palaniappan, Sami Colour Company.

Since the business belongs to the family and I as head of the family have by mistake described as proprietor. The error is purely clerical and due to

over-sight. I should not suffer purely on account of the technical error committed due to oversight.

But Ex.A-22 would show that the plaintiff is a firm registered under the Indian Partnership Act, 1932. In it, it is stated that the report as per

Section 58(1) of the Indian Partnership Act, 1932 was received and that the firm is registered as ""M/s. Sami Colour Company"". Ex.A-22 also

states that it is entered in 1978 as No. 258. The trial court has stated in paragraph 6 of its judgment that Ex.A-22 would show that the plaintiff-firm

has been registered as a firm under Indian Partnership Act. Order 29, Rule 1, Civil Procedure Code, reads as follows:

Suing of partners in the name of the firm (1) any two or more persons claiming or being liable as partners and carrying on business may sue or be

sued in the name of the firm if any of which such persons were partners at the time of accruing of the cause of action, and any party to a suit may in

such case apply to the court for the 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 a firm, to be furnished and verified in such manner as the court may direct.

A registered partnership firm can sue in the name of the partner for claim due to it. As per Section 5 of the Indian Partnership Act, the relation of

partnership arises from contract and not from status and in particular the members of a Hindu undivided family carrying on a family business as

such, or a Burmese Buddhist husband and wife carrying on business as such, are not partners in such business. In the instant case, on the showing

of the plaintiff himself, as seen by Ex.A-22 produced by the plaintiff, Sami Colour Company is a Registered Partnership Firm. It can sue in the

partnership name through its partner. But in the instant case after the amendment, the plaintiff is family manager M. Palaniappan, Sami Colour

Company. The legal entity to which the amount is due is to a Registered partnership firm by name ""M/s. Sami Colour Company"". But the plaintiff,

who had sued is, family manager Sami Colour Company. The two entities are different. On the facts and evidence available in this case, I find that

the submission made by Mrs. S. Subbulakshmi that suit has been laid in the name of a wrong person and hence it is not liable is well founded. Mr.

S. Jagadeesan would submit that one Palaniappan is also a partner and that though he had been described as a family manager, it would not matter

and no prejudice would be caused to the revision petitioner. In the affidavit filed in support of the application in I.A. No. 310 of 1986, he had not

slated that he is the partner of a registered firm M/s. Sami Colour Company.

I have extracted the relevant portions in the affidavit in the paragraphs above. Nowhere, he had stated that he was a partner of Sami Colour

Company. In view of the above, I am unable to accept the submission made by Mr. S. Jagadeesan. In paragraph 11 of the judgment of the lower

appellate court, the learned Judge has stated as follows: ""The advocate appearing for the plaintiff pointed out that Palaniappan and his sons are

doing business and this business is a joint family business, even though it has been registered under the Partnership Act."" Thus, there has been

admission before the lower appellate court that the firm has been registered under the Partnership Act. A firm registered under the Indian

Partnership Act and the joint family business are different legal connotations. When it is shown and admitted to be a firm registered under the

Indian Partnership Act, the question of the family manager representing the joint family business would not arise. So, looking the case from any

angle, it is clear that the suit has been instituted in the name of the wrong person.

In S. Krishnan Vs. Aruna and Associates, , an amendment sought for to convert the suit as one by individual proprietor on the dissolution of the

unregistered firm was not permitted. In that case, Aruna and Associates, an unregistered firm filed the suit for recovery of money for work done as

contractors. After the suit was filed, an amendment of the plaint was sought for and allowed so as to convert the suit as one instituted by a person

as the sole proprietor thereof. On revision to this Court, this Court allowed the revision petition. After referring to several authorities, the learned

Judge has laid as follows:

The essential principle behind such actions and decisions is obvious. A person cannot approbate and reprobate. When once he takes up a stand

that it is a partnership firm he should stand by it. Once he takes up the position that it is a dissolved firm, equally he should be prepared to

substantiate it. But he cannot have a third way out of it by bringing in a person who was a quondam partner of the unregistered firm as if he has

become the proprietor thereof on dissolution. This metamorphosis is not available in law.

In view of the above, I am clear that suit has been laid in the name of the wrong person and hence it is not maintainable and is liable to be

dismissed. The aspect of the case has not been properly appreciated by the courts below and hence they have arrived at erroneous conclusions.

They cannot be sustained and they are liable to be set aside.

In view of the above, the civil revision petition is allowed and the findings of the courts below are set aside. In the result, the suit shall stand

dismissed. No costs.