Judgment : Debangsu Basak, J. Appellant/plaintiff filed a suit for recovery of price of goods sold and delivered in 2004. The defendant was sued in the name of the firm “Ball Roll Corporation”. The firm was, however, described as a sole proprietorship concern of one Gopal Rathi. The appellant/ plaintiff applied in 2009 for amendment. Mr. Gopal Rathi also applied for striking out of his name. He contended, he had no nexus with Ball Roll Corporation and Ball Roll corporation was a partnership concern of which the proposed defendants were partners. By the application for amendment the appellant/plaintiff the sole defendant was sought to be described as a partnership firm and the partners of such firm were sought to be brought on record as the defendant nos. 2 to 4. The learned Single Judge disallowed the application for amendment giving rise to the present appeal. Mr. Swarnendu Ghosh, learned Counsel appearing in support of the appeal, contended, the suit was filed against Ball Roll Corporation. He contended, Ball Roll Corporation was misdescribed as a sole proprietorship concern of Mr. Gopal Rathi which in fact was not so. He sought to rely on the documents annexed to the plaint to demonstrate that the appellant/plaintiff had dealings and transactions with Ball Roll Corporation and not Mr. Gopal Rathi as the sole proprietor of Ball Roll Corporation. In support of his contention that a misdescription could be allowed to be amended, he relied on All India Reporter 1955 Madras page 294 (Mohideen v. V.O.A. Mohomed). Mr. Ghosh relied on All India Reporter 1984 Madras page 19 (T.P. Palaniswami & Anr. v. Deivanaiammal & Ors.) to contend that negligence or carelessness or belatedness need not be put against a party seeking amendment if the facts and circumstances of the case would warrant allowing of the amendment for the purpose of adjudicating the controversy between the parties comprehensively in the same lis. He contended that the Courts ought to be liberal in allowing an amendment at a pre-trial stage. The trial of the suit did not commence as yet. He relied on 2008 volume 14 Supreme Court Cases page 364 (Rajkumar Guruwara v. S.K. Sarwagi and Company Private Ltd. & Anr.) in support of such contention. Mr. Rudradeb Chowdhuri, appearing for the proposed defendants, on a query from the Court, fairly submitted that the respondent no. The trial of the suit did not commence as yet. He relied on 2008 volume 14 Supreme Court Cases page 364 (Rajkumar Guruwara v. S.K. Sarwagi and Company Private Ltd. & Anr.) in support of such contention. Mr. Rudradeb Chowdhuri, appearing for the proposed defendants, on a query from the Court, fairly submitted that the respondent no. 1 was a partnership firm duly registered under the Indian Partnership Act, 1932 and that the defendant nos. 2 to 4 were the partners of the defendant no. 1 and, that apart from the defendant nos. 2 to 4, nobody else was entitled to represent the defendant no. 1. He contended that on the date when the application for amendment was made, the claim of the plaintiff as against his clients stood barred by the laws of limitation. Consequently, his clients could not be brought on record as defendants by way of the proposed amendment. He contended, the original defendant was not misdescribed. The appellant/plaintiff was well-aware of the constitution of the firm and the same would appear from various documents to which he drew our attention to. The appellant/plaintiff had dealings and transactions with Gopal Rathi. The so-called misdescription was certainly not a mistake. By the proposed amendment the appellant/plaintiff was seeking to leave out Mr. Gopal Rathi with an ulterior motive. The amendments sought for, would change the nature and character of the suit. The amendments, if allowed, would convert a suit against a proprietorship concern to one against a partnership firm. He relied on All India Reporter 1953 Supreme Court page 455 (The Commissioner of Income Tax, West Bengal v. M/s. A.W. Figgis & Co. and Ors.) to submit, under the law a partnership firm had no legal existence apart from its partners and that it was merely a compendious name to describe its partners. He relied on 115 (2004) Delhi Law Times page 471 (Miraj Marketing Corporation v. Vishaka Engineering & Anr.) to contend, a proprietorship firm was not a legal entity like a registered firm. A suit could not be instituted in the name of an unregistered proprietorship firm and the suit was instituted in the name of the proprietor. A sole proprietorship firm could not sue or be sued in its own name. A suit could not be instituted in the name of an unregistered proprietorship firm and the suit was instituted in the name of the proprietor. A sole proprietorship firm could not sue or be sued in its own name. Would Ball Roll Corporation which was described as a sole proprietorship firm of Gopal Rathi (a person who was not a partner of the firm) be allowed to be correctly described as a partnership firm of the defendant no. 2 to 4 by the application for amendment when the claim of the plaintiff was contended to be barred by limitation? In the cause title of the plaint the appellant/plaintiff described Ball Roll Corporation as a sole proprietorship concern of Mr. Gopal Rathi. Documents annexed to the plaint, namely, the invoices show that the same were raised on Ball Roll Corporation. The goods in question attracted Central Excise. The plaintiff filed the suit claiming that sums remained outstanding due and payable by Ball Roll Corporation to it. Ball Roll Corporation admittedly was a registered partnership firm of which the proposed defendant nos. 2 to 4 were partners. Before the Revenue Authorities the appellant/ plaintiff as well as the Ball Roll Corporation proceeded on the basis that Ball Roll Corporation was a partnership firm. Both the appellant/plaintiff as well as Ball Roll Corporation were assessed by the Central Excise Authorities on the transactions between them. Money due and payable by Ball Roll Corporation as claimed by the appellant/plaintiff was the subject matter of the suit. Therefore, before the Revenue Authorities both the appellant/plaintiff and Ball Roll corporation acknowledged a transaction between the appellant/plaintiff and a registered partnership firm Ball Roll Corporation. Ball Roll Corporation was only one entity, that is, a registered partnership firm of the defendant nos. 2 to 4 and not a sole proprietorship concern of Mr. Gopal Rathi. Order VI Rule 17 of the Code of Civil Procedure, 1908 deals with amendments of pleadings. Amendments which were necessary for the purpose of determining the real questions in controversy between the parties were to be allowed at any stage of the proceedings on such terms as may be just. The proviso to Order VI Rule 17 was not attracted in the instant case as the trial did not commence. In the instant case, the suit was for recovery of price of goods sold and delivered. The proviso to Order VI Rule 17 was not attracted in the instant case as the trial did not commence. In the instant case, the suit was for recovery of price of goods sold and delivered. Goods were sold by the appellant/plaintiff to Ball Roll Corporation, a registered partnership firm acknowledged by Ball Roll Corporation to be a registered partnership firm before the Central Excise Authorities. The parties to the transaction as declared before the Central Excise Authorities, therefore, are the appellant/plaintiff one hand as the seller and Ball Roll Corporation and its partners as buyers on the other hand. Ball Roll Corporation was named in the cause title of the plaint, albeit with a misdescription. The amendments proposed by the appellant/plaintiff would give clarity to the parties to the lis already pending. Order XXX of the Code of Civil Procedure, 1908 was relied on by both the parties. It was contended on behalf of the respondents, the suit could not be filed in the name of Ball Roll Corporation describing it to be a sole proprietorship concern. On the other hand, the appellant/plaintiff contended, the suit was filed as against Ball Roll Corporation, a partnership firm, who was misdescribed and such misdescription the appellant/plaintiff sought to correct by way of the application for amendment. Transactions between the appellant/plaintiff and Ball Roll Corporation being admitted as would appear from the Central Excise documents the quantum, if any, of liability of Ball Roll Corporation to plaintiff was required to be adjudicated in the suit. Looked at from such perspective, by the proposed amendment, the misdescription of Ball Roll Corporation as a sole proprietorship concern of Mr. Gopal Rathi, was sought to be addressed. The appellant/plaintiff also sought to add the partners of Ball Roll Corporation as defendant nos. 2 to 4. Rajkumar Gurawara (Supra) speaks of three tests in considering an application for amendment, namely, “(i) When the nature of it is changed by permitting amendment; (ii) When the amendment would result in introducing new cause of action and intends to prejudice the other party, (iii) When allowing amendment application defeats the law of limitation.” On facts, the Hon’ble Apex Court in Rajkumar Guruwara (Supra) found that the plaintiff therein failed to satisfy the conditions prescribed in Order VI Rule 17 and that on merits also the plaintiff’s claim was liable to be rejected. Applying the three tests as above, in the instant case it cannot be said that the nature and character of the suit, which essentially was a suit for recovery of price of goods sold and delivered, against Ball Roll Corporation was changed. The contention that the appellant/plaintiff had knowledge of the constitution of the firm and that the amendments sought for are mechanism to let Mr. Gopal Rathi go with an ulterior motive, does not impress us. It was inconceivable that the appellant/plaintiff would deliberately misdescribe its debtor in a suit filed for recovery of price of goods sold and delivered to have the same plaint amended subsequently. Similarly, the contention that the suit was against a sole proprietor which by the amendment was sought to be made against a partnership firm, does not impress us. Ball Roll Corporation was on record since inception. Its misdescription was sought to be addressed. The respondents did not contend, there ever was a sole proprietorship firm of Mr. Gopal Rathi under the name and style of Ball Roll Corporation. The parties cannot be allowed to claim two different status as to their legal entity before two different forai. So far as the second condition was concerned, it cannot be said that the amendment would result in introducing any new cause of action and that it intended to prejudice the defendants. The amendments proposed, were not introducing any new cause of action. The same transaction between the appellant/plaintiff and the Ball Roll Corporation as before the Revenue Authorities would continue to be agitated in the amended plaint. Ball Roll Corporation and their partners cannot claim prejudice when asked to defend a suit for price of goods sold and delivered particularly when Ball Roll Corporation and its partners had acknowledged such transactions before a Revenue Authority. Ball Roll Corporation albeit misdescribed was a party/defendant since inception of the suit. Suit was filed within the period of limitation. Therefore, allowing the amendment would not defeat the law of limitation. In All India Reporter 1955 Madras page 294 (Mohideen v. V.O.A. Mohomed) it was held that so long the Court was able to discover the person/persons intended to sue or to be sued a mere misdescription of such a party can always be corrected provided the mistake was bona fide, such an amendment did not involve the addition of the party so as to attract limitation. In this case the appellant/plaintiff had dealings with Ball Roll Corporation acknowledged by both at least before the Central Excise Authorities. Invoices showing charge of Central Excise, were annexed to the plaint. Therefore, there cannot be any doubt that Ball Roll Corporation, a partnership firm duly registered under the Indian Partnership Act, 1932 was sued for recovery of price of goods sold and delivered. Viewed in such perspective the misdescription of Ball Roll Corporation as a sole proprietorship concern was sought to be corrected by the amendment. We are unable to accept the contention of the respondent that there was no misdescription of the defendant in the plaint. The documents annexed to the plaint and the conduct of the parties, does not support such view. Acceptance of the contention of the respondents would mean acknowledging that Ball Roll Corporation was a sole proprietorship concern of Mr. Gopal Rathi for the purposes of the suit and it being a registered partnership firm before the revenue authorities at the same time. In All India Reporter 1953 Supreme Court page 455 (The Commissioner of Income Tax, West Bengal v. M/s. A.W. Figgis & Co. and Ors.) the Hon’ble Apex Court was concerned with the impact of Section 25(4) of the Indian Income Tax Act, 1922 on a reconstituted partnership firm. It held that under the law of partnership a firm has no legal existence apart from its partners and that it is merely a compendious name to describe its partners. In the facts of the instant case when Ball Roll Corporation was already a party defendant it was proper for its partners to be brought on record as the defendant nos. 2 to 4. The Delhi High Court in 115 (2004) Delhi Law Times 471 (Miraj Marketing Corporation v. Vishaka Engineering & Anr.) was concerned with a suit filed by the plaintiff who was a sole proprietor. On facts, it was found, the sole proprietor neither signed the plaint nor did he sign the power which was filed in that case. In such circumstances the Delhi High Court found, the suit was not instituted by a duly authorized person. The facts of the instant case would thus differ from each other. In course of argument the appellant/plaintiff in order to allay the fear of the respondents herein that the plaintiff was giving up Mr. In such circumstances the Delhi High Court found, the suit was not instituted by a duly authorized person. The facts of the instant case would thus differ from each other. In course of argument the appellant/plaintiff in order to allay the fear of the respondents herein that the plaintiff was giving up Mr. Gopal Rathi as a party/defendant for ulterior reasons, volunteered to keep Mr. Gopal Rathi as a party/defendant in the suit. During hearing, we directed the appellant/plaintiff to issue a notice on Mr. Gopal Rathi. Such notice was issued. An affidavit of service was filed. Mr. Gopal Rathi did not appear during hearing in spite of notice. We, therefore, allow the appeal and permit the amendments as sought for by the appellant/plaintiff. The department is directed to incorporate such amendments within two weeks after the X’ mas vacations. Although the appellant/plaintiff volunteered to add Mr. Gopal Rathi as a defendant in the suit we do not think that such course of action was necessary. In view of the findings recorded above, Mr. Gopal Rathi was neither a necessary nor a proper party in this suit. The appellant/plaintiff might have had transactions with Mr. Gopal Rathi as a sole proprietor of a different concern. So far as the transactions involved in the suit was concerned, Mr. Gopal Rathi acted as the agent of Ball Roll Corporation. When the principal itself was sued its agent need not be a party to such suit. The appeal is disposed of accordingly without any order as to costs. Ashim Kumar Banerjee, J: I agree.