Order XXX
(CPC)
Suits by or
against Firms and Persons carrying on business in names other than their own.
Or. 30, r. 1—Sole-proprietor-—.Plaintiff
suing in the name of the firm—Amendment correcting the description of the
plaintiff does not substitute or add the plaintiff.
The
plaintiff instituted the suit, describing himself as “Ismail Haji Sulaiman, a
proprietary firm” instead of “Ismail Haji Sulaiman, a proprietor of the firm,”
he being the sole owner of the firm. The defendants contended that the suit was
not maintainable under Or. 30, r. I inasmuch as the plaintiff being the sole
owner of the firm could not maintain the suit in the name of the firm. The
Courts below upheld the defendants’ contention and dismissed the plaintiff’s
suit and plaintiff’s prayer for amendment of the plaint was also disallowed.
On appeal to
the High Court it was contended on behalf of the plaintiff-appellant that the
description of the plaintiff in the plaint was a wrong description and by the
amendment of the plaint by describing the plaintiff as lsmail 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 on the date of amendment.
Held: In the
present case it is clear that the plaintiff intended to sue in his own name and
not in the name of the firm and the words “Ismail Haji Sulaiman, a proprietary
firm” is a wrong scription and the amendment if allowed will not attract
operation of section 22(1) of the Limitation Act, inasmuch as no plaintiff is
being substituted or added thereby.
Ismail Haji
Sulaiman Vs. M/s. Hansa Line (1961) 13 DLR 66.
Or. 30 r. 4—Partnership
(consisting of 2 persons) is dissolved due to retirement of one of the partners
during the pendency of the suit—Remaining partner competent to proceed with the
Suit and upon a decree passed therein competent to execute the decree in the
name of the partnership;
Menon
Trading Co. Vs. Hajee Gaffar Hajee habib Janoo (2968) 20 DLR 41.
R. 9—Suits
between co-partners: No suit lies as between partners or between firms having
common partners for money or monies without asking for accounts 34 MU 408 :
45 IC 86 34 M 112, 28 Mad 344) Dis.
Each of the
parties to a partnership Suit IS really in terra plaintiff and defendant and in
both capacities comes before the court. 167 PWR 1917: 42 IC 436, 78 167 Ret.
R.10—.Suit
against person carrying on business in another name : On the death of sole
proprietor of a firm unless it carries on business which justifies a
presumption that his heirs are its partners, a suit cannot be instituted under Or.30,
r. 10 in the old manic. of the firm. R.10 will apply only if the business is
carried on at the Lime when the suit is instituted. 89 IC 22 : 1926 All 161.
Or. 31, rr.
1-3—Suits by or against 1xecutors and Administrators.
One of the
several administrators of an estate can maintain a suit to recover rent with
the consent of the other administrators who arc impleaded as profonna
defendants 53 IC 478.
Under s. 82
of Pro. and Adm. Act and Or. 31, r.1 of this Code none but an executor is
competent to prosecute a suit as representative of the deceased. 55 IC 504:2
UPLR Pat 31.
All
trustees, executors or administrators should be made defendants. 1934 (All) 1
1943 Born 32.
In a suit
against a temple all the trustees arc necessary parties even though there is an
agreement between them authorizing one of them to represent the temple. 1922
Mad. 405, 55A 687.