Order 30 - CPC

CPC (Civil Procedure Code, 1908 ) CPC -Orders and Rules

Suit was instituted in the name of the firm - mis-description

A suit was instituted in the name of the firm by the partners doing business outside India. It was held that there was only mis-description of the plaintiff. The plaint in the name of the firm was not a nullity and could be amended by substituting the names of partners.

1960 SCeJ 001 Purushottam & Co. v. Manilal & Sons, AIR 1961 SC 325, (1961) SCR 982 : (1961) 1 SCJ 283 : (1961) 1 SCA 293

When a suit is filed in the name of a firm it is in reality a suit by all the partners of such firm.

Introduction of Order 30 in the Code was an enabling one which permitted partners constituting a firm to sue or be sued in the name of the firm. This enabling provision accorded no such facility or privilege to partners constituting a firm doing business outside India. The Court noticed the history of O. 30 of the Code of Civil Procedure and observed that there was a practice prior to that to institute suits in the name of the firm which was based on the assumption that the suit concerned was either by all the partners of the firm or against all the partners of the firm. If, however, objections were taken that such a suit in the name of a firm was not maintainable because it had no legal entity, the Courts were to decide whether the suit had been instituted by non-existent persons and if so, whether it was void. The introduction of Order 30 into the Code prevents such objection being taken because it permits two or more person carrying on business of the firm but the firm must be carrying on business in India. As to the nature of the firm but the firm must be carrying on business in India. As to the nature of the firm under Section 4 of the Indian Partnership Act, 1932, the Court observed that the word "firm" or the "firm name" was merely a compendious description of all the partners collectively. It followed, 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 authorized the same. 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 a firm it is in reality a suit by all the partners of such firm. After referring to Rule 1 of Order 30, the Court observed that the rule enabled any party to a suit filed in the name of a firm doing business in India to apply to the Court for a statement of the names and addresses of 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. R. 2 of O. 30 makes it obligatory to declare in writing the names and places or residence of all the persons constituting the firm on whose behalf the suit is instituted. Certain consequences have been indicated. The provision of Rule 2 indicates that although the suit is filed in the name of a firm, it is nonetheless a suit by all the partners of the firm and all these provisions are enabling to permit several persons who are doing business as partners to sue or be sued in the name of the firm. That does not, however, prevent the partners of a firm from suing or being sued in their individual names. There is no prohibition as such in terms imposed by Order 30 of the Code. Upon this view, the Court ruled that such a suit filed in a Court in India was not a nullity, though the firm was carrying on business outside India.

1960 SCeJ 001 Purushottam & Co. v. Manilal & Sons, AIR 1961 SC 325, (1961) SCR 982 : (1961) 1 SCJ 283 : (1961) 1 SCA 293

In matters of suits on behalf of firm, the provisions of Order 30 are ample and conclusive

The procedural laws are to be liberally construed laws are to be liberally construed and this is more so when it is an enabling provision.

This authoritative exposition of law (1960 SCeJ 001) clearly shows that in matters of suits on behalf of firm, the provisions of Order 30 are ample and conclusive, Rule 4 of Order 30 specifically deals with right of suit on death of a partner and opens by a non obstinate clause expressly excepting Section 45 of the Contract Act. It is further enabling in nature and clearly shows that where two or more persons are enabled to sue or can be sued in the name of a firm under the provisions of Order 30 and any one of them dies whether before institution or during the pendency to join the legal representatives of the deceased as a party to the suit. Sub-rule (2) does not however affect or limit the right of the legal representatives of the deceased to apply to be made a party to a suit for enforcing their claim against the survivor or survivors. Once it is shown that a suit is on behalf of a firm, it is equally a suit under Order 30 itself and it is plain that the terms "suits" will also include the term "appeal", the same being continuation of the suit. The procedural laws are to be liberally construed laws are to be liberally construed and this is more so when it is an enabling provision. It appears from the very scheme of Order 30, and particularly of \rule 4, that it did away with the necessity of impleading the legal representatives of the deceased partner in express terms, and avoiding abatements of the partnership causes in Court. It is perfectly possible to see the object underlying the provision and that is to enable the enforcement of the firm-obligation without least complications. Otherwise the partners who have brought the suit properly would be visited with penalty of facing an abatement of the action only for legal representatives are not brought on record. It is conceivable that such a partner may not be knowing at all, all the legal representatives or there may be various difficulties in bringing all of them on record and in law can be treated as best representing interest of the deceased partner. To attract Rule 4 the action needs be in the name of the persons collectively, called "firm". The words "where two or more persons may sue or be sued in the name of a firm", under the foregoing provisions, indicate that the suit may be by a person or partner on behalf of the firm for enforcing the firm-obligations. it would bristle with technicality to say that the suit must be in the name of a firm. Even a suit properly laid for the firm by the authorized partner is well within the terms of Rule 4. The terms of this rule being permissive in nature I am not inclined to impose or imply any technicality in its construction.

1973 SCeJ 001 (Bom.) Godavari Pravara Canal ... vs Krishnarao AIR 1974 Bom 52