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Madhya Pradesh High Court · body

1953 DIGILAW 55 (MP)

Rameshwar Dayal v. Bhagatram

1953-09-29

DIXIT

body1953
ORDER : 1. This is a petition to revise an order passed by the Civil Judge First Class Guna granting leave to the plaintiff-non-applicants to amend their plaint. In the plaint as it was originally filed it was alleged that the plaintiff firm of Bhagatram Brijmohan entered into a partnership with the two defendant-firms known as "Ramkrishandas Ghanshyamdas" and Tularam Girdharilal" for the supply of gram to the army of the former Gwalior State; that the partnership was dissolved on 17-7-1947 and the defendant-firms who used to keep the accounts of the partnership business had failed to render any accounts of the partnership business to the plaintiff-firm in spite of repeated demands. The defendant-firms in their written statements admitted the partnership and resisted the suit inter alia on the ground that as the partnership was between the firms, it was not lawful. Thereupon the plaintiff-firm sought leave to amend the plaint so as to allege that the partnership was between the members of the plaintiff-firm in their individual capacity and members of the defendant-firms in their individual capacity. The suit was originally filed by Bhagatram, Brijmohan and Shiv Shankarlal declaring themselves as owners of the firm Bhagatram Brijmohan. By the amendment these plaintiffs sought to make their sons also plaintiffs in the suit on the ground that they were also partners of the firm Bhagatram Brijmohan. The defendant opposed the grant of leave for amendment of the plaint saying that the amendment altogether altered the character on the suit and the cause of action. The learned Civil Judge rejected the objection of the defendants and allowed the amendment. 2. Having heard learned counsel for the parties, I have come to the conclusion that this revision petition must be dismissed. To me it appears that if the learned Civil Judge had instead of stating abstract propositions of law with regard to amendment of plaints, taken the trouble to show how the amendment did not alter the nature of the suit and the cause of action, the applicants would have had no ground for coming up in revision to this Court. The amendment was obviously prompted by the objection of the applicants that there could be no partnership between firms and that, therefore, the partnership alleged lay the plaintiff-firm was unlawful. Strictly speaking the amendment made in the plaint was not necessary. The amendment was obviously prompted by the objection of the applicants that there could be no partnership between firms and that, therefore, the partnership alleged lay the plaintiff-firm was unlawful. Strictly speaking the amendment made in the plaint was not necessary. The reason is that when Bhagatram, Brijmohan and Shiv Shankarlal declaring themselves as owners of the firm Bhagatram Brijmohan alleged that their firm entered into a partnership with the two defendant-firm of which Rameshwardayal, Ramkishandas, Chhitarmal and Ratanlal were partners, in fact and in law it meant that the three individuals who were partners in the firm Bhagatram Brijmohan joined with the four individuals who were members of the firm Ramkishandas Ghanshyamdas and Tularam Girdharilal, and carried on business together as partner's for the supply of gram to the Gwalior Army. A firm as such has no existence in law, and the law regards only the individual partners. A firm is merely a collective name of the individuals who are members of the partnership and as such one firm cannot become partner with another firm. But from this it does not follow that if a firm has in fact entered as a partner in another firm the partnership is unlawful on that ground. What happens in such a case is that the partners in one firm become partners in the other firm in their individual capacity and the rights and obligations of the firm are really the rights and obligations of the Individual partners composing the firm. This legal position has been made very clear in several decisions. In - 'Kader Bux Omer Hyat v. Bukt Behari', AIR 1932 Cal 768 (A) it was held that a firm is nothing but an association of individuals, and that when such an association under a firm name entered into a partnership with another individual or another association of individuals it is not the aggregate that combines with the individual, but the individuals composing that aggregate. It was further pointed out in that case that there was no legal obstacle to the members of a firm entering into partnership with other individuals or members of other firms, and the mere fact that in such business or contract they describe themselves as a firm does not make the association unlawful and a suit for partnership accounts by them is maintainable. To the same effect are the decisions in - 'Ghisulal v. Gumbhirmull', AIR 1938 Cal 377 (B); - 'Brij Kishore Ram Sarup Firm v. Sheocharan Lal', AIR 1938 All 69 (C) and - 'Mahomed Abdul Latiff v. Ismail', AIR 1934 Mad 9 (D). In the Allahabad case it was also made clear that where a firm enters into a partnership with other individuals, one of the partners of such firm can sue for accounts on behalf of all in accordance with O. 30, Civil P.C. It is thus plain that by amending the plaint so as to make it very clear that the partnership was between the partners of the three firms in their individual capacity, the plaintiffs have only stated the true legal position, which they had confused by saying originally that their firm had entered into a partnership with the two defendant-firms. The amendment thus does not after the nature of the suit which even after the amendment remains one for general partnership accounts. Nor does, it alter the cause of action for the suit. In this view of the matter no objection can be taken to the addition of the sons of Bhagatram, Brijmohan and Shiv Shankarlal as plaintiffs in their capacity as partners of the firm of Bhagatram Brijmohan. The question whether they were or were not partners of the firm Bhagatram Brijmohan and as such entered into partnership with the two defendant-firms is, however, a different matter. There is nothing to prevent them from joining as plaintiffs in the suit claiming to be partners with the defendants in the partnership business of supply of gram to the Gwalior Army. 3. For these reasons I uphold the order of the trial Court allowing the amendment of the plaint. In the circumstances of the case there will be no order as to costs of this petition. Revision dismissed.