TaxTMI 
TaxTMI 
1969 (3) TMI 71
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Subordinate Judge, Nanital, for a decree for Rs. 10,139/12/- being the value of timber supplied to the defendant-the National Building Material Supply, Gurgaon. The action was instituted in the name of "Jai Jai Ram Manohar Lal" which was the name in which the business was carried on. The plaintiff Manohar Lal subscribed his signature at the foot of the plaint as "Jai Jai Ram Manohar Lal, by the pen of Manohar Lal", and the plaint was also similarly verified. The defendant by its written statement contended that the plaintiff was an unregistered firm and on that account incompetent to sue. On July 18, 1952, the plaintiff applied for leave to amend the plaint. Manohar Lal stated that "the business name of the plaintiff is Jai Jai Ram Manoha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e action was instituted in the name of a "non-existing person" and Manohar Lal having failed to aver in the application for amendment that the action was instituted in the name of "Jai Jai Ram Manohar Lal" on account of some bona fide mistake or omission, the Subordinate Judge was incompetent to grant leave to amend of the plaint. The High Court after making an extensive quotation from the judgment of this Court in purushottam Umedbhai and Company v. Messrs. Manilal and Sons (1) observed that the action could not be instituted by the plaintiff in the business name; it should have been instituted in the name of the Karta of the Hindu undivided family in his representative capacity or else 'all the members of the joint family must join as pla....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y not be compensed for by an order of costs. However negligent or careless may have been the first omission, and, however late the proposed amend- ment, the amendment may be allowed if it can be made without injustice to the other side. In Amulakchand Mewaram and others v. Babulal Kanalal Taliwala(1), Beaumont, C.J., in delivering the judgment of the Bombay High Court set out the principles applicable to cases like the present and observed: "...... the question whether there should be an amendment or not really turns upon whether the name in which the suit is brought in the name of a non-existent person or whether it is merely a misdescription of existing persons. If the former is the case, the suit is a nullity and no amendment can cure....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... it was not a case of misnomer or misdescription, but a case of a non- existent firm or a non-existent person suing. In appeal, the High Court held that the description of the plaintiff by a firm name in a case where the Code of Civil Procedure did not permit a suit to be brought in the firm name should properly be considered a case of description of the individual partners of the business and as such a misdescription, which in law can be corrected and should not be considered to amount to a description of a non-existent person. Against the order of he High Court an appeal was preferred to this Court. This Court observed (at p. 994) : "Since, however, a firm is not a legal entity the privilege of suing in the name of a firm is permissible o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....intiff was competent to sue in his own name as Manager of the Hindu undivided family to which the business belonged; he says he sued on behalf of the family in the business 'name. The observations made by the High Court that the application for amendment of the plaint could not be granted, because there was no averment therein that the misdescription was on account of a bona fide mistake, and on that account the suit must fail, cannot be accepted. In our view, there is no rule that unless in an application for amendment of the plaint it is expressly averred that the error, omission or misdescription is due to a bona fide mistake, the Court has no power to grant leave to amend the plaint. The power to grant amendment of the pleadings is inte....