Research › Browse › Judgment

Calcutta High Court · body

1946 DIGILAW 192 (CAL)

Kanhyalal Kanodia v. Select Pictures Circuit

1946-07-04

body1946
JUDGMENT Majumdar, J. - This is Plaintiff's application. He alleges that the Defendant firm was appointed sole distributors for the south circuit (including its dependencies) of the Picture "Quaidi" belonging to a limited company, viz., the Film Corporation of India, Limited. The Petitioner who purchased the right, title and interest of the said company including benefits of all agreements in respect of the said picture "Quaidi" instituted this suit against the Defendant firm for a full and true account of the exploitation of the film "Quaidi." The writ of summons was served on the Defendant firm which entered appearance and a written statement was filed. The written statement was signed in the following way--"Select pictures circuit by Ambalal M. Patel partner by the pen of Iswarlal Bhagilal Desai constituted attorney." It appears that Desai is the constituted attorney of the partner Patel and not the constituted attorney of the firm. In the power of attorney which is annexed to the petition of Patel it is stated that Desai was appointed the true attorney of Patel because he wanted to contest the claim and Patel conferred on Desai certain powers including the power to put in appearance, to file documents, to sign and verify pleadings. It seems that on the strength of this power of attorney Desai signed the written statement as and in the manner hereinbefore mentioned. The Petitioner has asked for the written statement so filed and affidavit of documents similarly signed and filed to be taken off the records and the suit transferred to the list of undefended causes. Mr. Kar appearing on behalf of the Petitioner contends that the written statement on behalf of the firm could be signed by a partner but not by a constituted attorney of the partner and as in this case the written statement on behalf of the firm has been signed by a constituted attorney of a partner, there has been no written statement on behalf of the firm. It is well-known that the firm name used in a suit is only a compendious way of describing the partners who compose the firm and a suit against the firm is really a suit against the partners individually just as much as if all their names have been set out. It is well-known that the firm name used in a suit is only a compendious way of describing the partners who compose the firm and a suit against the firm is really a suit against the partners individually just as much as if all their names have been set out. Therefore when the firm name is used as the Defendant it is to be deemed that all the partners of the firm are the Defendants. 2. Or. 30, r. 6 of the CPC lays down that where persons are sued as partners in the name of their firm they shall appear individually in their own names but all subsequent proceedings shall nevertheless continue in the name of the firm. It follows and it has been so construed by this Court in the case of Ghishulal v. Gambhirmal I. L. R. 62 Cal. 510 at p. 525 (1934) that the appearance of one partner is appearance on behalf of the firm, i.e., of all the partners of the firm. This appearance of one partner does not debar the other partners if they feel that their interest will not be sufficiently protected from filing different written statements but they cannot do so on their own behalf but must file in the name of their firm. [See the case of International Continental Caoutchouc Compagnie I. L. R. 54 Cal. 1057 at p. 1063 (1927)], and also observations of Ameer Ali, J., in Satya Charan v. Calcutta Hardware Engineering Co. 42 C. W. N. 820 at p. 822 (1938). [Therefore it is quite possible that as many different written statements may be filed by as many partners of the firm as they choose but ail the written statements should be in the name of the firm and not on behalf of the different partners. In this case the partner Patel appeared individually and filed a written statement in the name of the firm which he is perfectly justified in doing, although the proceedings are being carried on in the name of the firm as required by law. 3. As regards subscription to pleadings it is provided in Or. 6, r. 14, that a pleading is to be signed by the party or any person duly authorised by him to sign the same. There is no provision in the CPC restricting in any way the application of this rule to suits against firms under Or. 3. As regards subscription to pleadings it is provided in Or. 6, r. 14, that a pleading is to be signed by the party or any person duly authorised by him to sign the same. There is no provision in the CPC restricting in any way the application of this rule to suits against firms under Or. 30, C. P. C. Consequently when under provision of Or. 30, r. 6 a partner appears individually on his own and files a written statement it would be competent for him to authorise another person to sign such written statement. The provision in r. 1 (2) of Or. 30, is not in my opinion in any way in conflict with the said Or. 6, r. 14 inasmuch as Or. 30, r. 1 (2) enables a partner to sign on behalf of all the partners in cases of suits by or against firm, but it does not take away the right of all partners generally or individual partners to authorise a person on their or his behalf to sign a pleading. That being so, it is difficult to see why Desai who is admittedly the duly authorised agent of the partner of Patel could not sign the written statement as has been done. This would not of course debar the other partners from putting in their respective defence, if any, which may be different from the defence put in by Patel. 4. My attention has been drawn to secs. 19 and 20 of the Indian Partnership Act but I do not think they are of any assistance in deciding the question at issue inasmuch as they do not relate to or provide the procedure for signing a pleading for which there is specific provision in Civil Procedure Code. The result is that the application fails and should be dismissed with costs.