2004 (11) TMI 608 - HC - Indian Laws

Maintainability of Suit - Whether the suit of the plaintiff is not signed and verified by a duly authorised person? - HELD THAT - It is an admitted position in the plaint that the plaintiff is a proprietorship firm. There is, however, no statement made in the plaint by the plaintiff as to who is the proprietor of the firm. Shri Amitabh Sharma is described in the cause title of the plaint only as an authorised representative. The name of the proprietor of the said proprietorship firm is not given in the plaint. The original plaint which is placed on record has a verification. However, the signature appended to the said verification appears to be that of Shri A.K. Pandey, who was examined in the suit as PW-2, as the main witness. He stated in his cross-examination that he was the proprietor of the plaintiff firm. He also stated in his cross-examination that the plaint was signed, filed and verified by him. PW-1 also in his cross-examination stated that the plaintiff firm was a proprietorship firm and that Shri A.K. Pandey was the sole proprietor of the plaintiff firm. It was, however, stated by him that the plaintiff firm was a registered firm but he could not state as to when the said firm was registered. It is apparent that Shri A.K. Pandey had not instituted the suit. He had only come as a witness. Even in the amended plaint the suit was shown to have been instituted in the name of the firm. A sole proprietorship firm is not a legal entity which can sue or be sued in its own name. Such suit relating to or against the affairs or claims of a proprietorship concern has to be brought or made against the person who is the sole proprietor of the firm. The plaintiff was described to be a proprietorship firm and represented through Shri Amitabh Sharma. Shri Amitabh Sharma had neither signed the plaint nor he signed the power which was filed in the present case. Thus, we agree with the findings and the conclusions recorded by the trial court that the suit was not instituted by a duly authorised person. Accordingly, we find no infirmity in the judgment and order passed by the learned trial court dismissing the suit on the ground that the suit was not properly instituted. We accordingly dismiss the appeal.

Summary

Issues:
The issues involved in this case are:
1. Verification of affidavits filed as evidence.
2. Suit brought in the name of a proprietorship firm.

Verification of Affidavits:
The trial court dismissed the suit based on the evidence recorded against Issues No. 1, 4, and 5. The court found that the verifications appended to the affidavits by the witnesses of the plaintiff did not comply with Order 19 of the Code of Civil Procedure. It was held that the affidavits were not proper and legal evidence, leading to the plaintiff failing to discharge the onus. Consequently, Issues No. 1 and 5 were decided in favor of the defendants.

Suit Brought in the Name of a Proprietorship Firm:
The trial court held that the suit was brought in the name of a proprietorship firm through an authorized representative who was not the proprietor. The court found that the plaintiff failed to establish the authority of the representative to file the suit. As a proprietorship firm is not a legal entity, the suit could not be brought in the firm's name, resulting in the dismissal of the suit. The appellate court upheld this decision, concluding that the suit was not properly instituted by a duly authorized person.

In summary, the appeal arose from a judgment dismissing a suit due to issues with the verification of affidavits and the improper institution of the suit in the name of a proprietorship firm. The appellate court affirmed the trial court's decision, finding no infirmity in the dismissal of the suit.