1960 (10) TMI 89 - SC - Indian Laws

Summary

Issues Involved:
1. Nullity of the plaint.
2. Applicability of Order I, Rule 10 and Order VI, Rule 17 of the Civil Procedure Code.
3. Suit by one partner or one promisee under Section 45 of the Indian Contract Act.
4. Addition or substitution of new plaintiffs and limitation period under Section 22(1) of the Indian Limitation Act.
5. Validity of the Power of Attorney executed by one partner.
6. Misdescription of the plaintiff and amendment of the plaint.

Issue-wise Detailed Analysis:

1. Nullity of the Plaint:
The appellants argued that the plaint as filed was a nullity, rendering the suit incompetent. They contended that bringing the partners of the firm on record amounted to the addition of new parties, which would be time-barred if the limitation period had elapsed. The Supreme Court, however, held that the plaint was not a nullity. It was a case of a suit instituted by all the partners of the firm, who were misdescribed as the firm Manilal & Sons. The Court concluded that the amendment to correct this misdescription was permissible.

2. Applicability of Order I, Rule 10 and Order VI, Rule 17 of the Civil Procedure Code:
The appellants argued that neither Order I, Rule 10 nor Order VI, Rule 17 applied to the case. The Supreme Court clarified that while these provisions may not strictly apply, the amendment could still be permitted under Section 153 of the Civil Procedure Code. The Court emphasized that the suit had been from its inception a suit by the partners, and the amendment was merely to correct the misdescription.

3. Suit by One Partner or One Promisee under Section 45 of the Indian Contract Act:
The appellants contended that a suit by only one partner or one promisee was bad to start with, and any amendment to include all partners would be time-barred if the limitation period had elapsed. The Supreme Court held that the suit was always by all the partners of the firm, and the amendment was to correct the misdescription, not to add new parties.

4. Addition or Substitution of New Plaintiffs and Limitation Period under Section 22(1) of the Indian Limitation Act:
The appellants argued that adding or substituting new plaintiffs would be deemed to have been instituted when they were made parties, thus making the suit time-barred. The Supreme Court rejected this argument, stating that the suit was by all the partners from the beginning, and the amendment did not involve the addition of new parties but merely corrected the misdescription.

5. Validity of the Power of Attorney Executed by One Partner:
The appellants questioned the validity of the Power of Attorney executed by one partner, arguing that it did not authorize Dunderdale to act on behalf of the firm or its individual members. The Supreme Court found that the Power of Attorney executed by Manubhai Maganbhai Amin, the manager of the firm, was valid and authorized Dunderdale to file and verify the plaint. The Court noted that under Section 18 of the Indian Partnership Act, a partner is an agent of the firm, and there was no prohibition against a partner executing a Power of Attorney for instituting a suit on behalf of the firm.

6. Misdescription of the Plaintiff and Amendment of the Plaint:
The Supreme Court agreed with the Division Bench of the High Court that the description of the plaintiff by the firm name was a case of misdescription. The Court referred to various precedents, including decisions from the Bombay, Calcutta, and Madras High Courts, which supported the view that a firm name is a compendious description of all the partners collectively. The Court held that the amendment to correct the misdescription was permissible and did not amount to adding or substituting new parties.

Conclusion:
The Supreme Court upheld the decision of the Division Bench of the Calcutta High Court, allowing the amendment of the plaint to correct the misdescription of the plaintiff. The Court dismissed the appeals, holding that the plaint was not a nullity and that the suit was always by all the partners of the firm. The Court also validated the Power of Attorney executed by the manager of the firm and concluded that the amendment did not involve the addition of new parties but merely corrected the misdescription. The appeals were dismissed without costs.