R.N. Sahay, J.
1. These first appeal and civil revision application have been heard together since the same order has been challenged both in appeal and civil revision.
2. The brief facts for disposal of these matters are as follows:
Hazaribagh Central Co-operative Bank Ltd., Hazaribagh (appellant in the fire appeal and petitioner in civil revision) (hereinafter to be referred to as the plaintiff) filed Money Suit No. 86/73 in the court of Subordinate Judge, Hazaribagh against one Md. Hafiz and Md. Rafique (to be referred to as the defendants) who were own brothers. Defendant No. 1 Md. Hafiz died during the pendency of the suit and his heirs have been substituted. The defendants deal in ready-made garments under the name and style of M/s. Bangalore Dresses in the town of Hazaribagh. The plaintiff had advanced a loan of Rs. 45,286.49 to the defendants which was not repaid. The defendants on receiving summons appeared and applied for time to file written statement, but despite several adjournments, no written statement was filed. The defendants have filed a petition challenging the maintainability of the suit. The plaintiff by way of abundant caution, filed a petition on 20.12.82 for amendment of the plaint. The following amendments were sought for:
(a) in paragraph 2 of the plaint, the word owners' be deleted and substituted as 'partners'.
(b) In para 5 of the plaint the word 'defendant who' be deleted in the beginning of the paragraph and the following may be inserted 'Md. Hafiz (since dead and represented by his legal representative) having implied authority of a partner dealt with the transaction of loan to carry on usual way the business of his firm M/s. Banglore Dresses and he and other defendant.'
(c) That in the same paragraph 5 after the date 21.2.1966 the 'defendants partners' be inserted before the word 'approached'.
(d) In the cause title of the plaint, the following be inserted in the category of the defendants 'M/s. Banglore Dresses (Govt. Contractor & General Order Suppliers) Dealer Ready-made Dresses and Fancy Saree, Hazaribagh through its partners the defendant Nos. 1 to 2'.
(e) After paragraph 7, new paragraph 7 (A) be inserted:
7a- That it has not been made known by the defendants to the plaintiff as to the names of the partners of the defendant No. 3 and hence the defendant No. 3 is being sued through all the defendants as partners. In future if the names of the partners are disclosed by the defendants, the plaintiff keeps his right reserved to amend his plaint accordingly.
3. Plaintiff filed another petition on 20.11.1982 stating that it was desirable to dispose of the amendment petition first and the hearing of the preliminary point raised by the defendants be deferred.
4. Defendants took time to file rejoinder and rejoinder was filed on 11.12.1982. The defendants objected to the prayer for amendment. Prayer for amendment and question of maintainability were heard together. The learned Subordinate Judge rejected the prayer for amendment of the plaint on the ground that it could not be allowed since the period for limitation for instituting the suit had expired. The Subordinate Judge further held that the amendment shall also change the nature and character of the suit: He held that the suit was not maintainable since the firm M/s. Bangalore Dresses was not impleaded and hence in view of Order 30 Rule 1 C.P.C., the suit against the partners was not maintainable.
5. Sri P.K. Prasad, counsel for the defendants raised a preliminary objection that neither the first appeal nor the civil revision is maintainable. The civil revision is not maintainable because the order of the Subordinate Judge is a decree against which appeal has been filed. The appeal is maintainable in view of amendment in Assam Civil Courts Act raising the pecuniary jurisdiction of the District Judge to Rs. 60000/-, the memo of appeal has to be returned to be presented before the proper court.
6. I would first examine the question as to whether the order of the Subordinate Judge on the point of amendment and maintainability of the suit is proper ?
7. Rule 2 Order 14 provides that notwithstanding a case may be disposed of on a preliminary issue, the court shall subject to the provision of Sub-rule (2) pronounce judgment on all issues. Sub-rule (2) of Order 14 provides whether issues both of law and fact arise in a suit and the court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue if that issue relates to : (A) jurisdiction of the court or (b) a bar to a suit created by any law for the time being in force. The court can take resort to this Order only after issues are framed. Sub-rule (1) of Order 14 says that issues arise when material proposition of fact and law is affirmed by one party and denied by the other. Sub-rule (5) provides that at the first hearing of the suit, the court shall after reading the plaint and the written statement ascertain as to on what material proposition of fact or of law the parties are at variance and shall thereupon proceed to prepare and record issues on which the right decision of the case appears to depend.
8. The Subordinate Judge had no jurisdiction to proceed to decide the preliminary issue without first framing issues. It is stated that the defendants had not filed any written statement. On merits also, the view of the Subordinate Judge that the suit was not maintainable in view of Order 30 Rule 1 is palpable misconceived. Order 30 Rule 1 provides as follows:
Suiting of partners in name of firm (1) Any two or more persons claiming or being liable as partners and carrying on business in India may sue or be sued in the name of the cause of action, and any party to a suit may in such case apply to the court for a statement of the names and addresses of the persons who were at the time of the accruing of the cause of action, partners in such firm, to be furnished and verified in such manner as the Court may direct.
(2) where persons sue or are sued as partners in the name of their firm under Sub-rule (1), it shall, in the case of any pleading or other document required by or under this code to be signed, verified, or certified or certified by the plaintiff or the defendant, suffice if such pleading or other document is signed, verified or certified by any one of such persons.
9. In Purushottam Udambhai & Co. v. Manilal & Sons reported in : [1961]1SCR982 , the Hon'ble Supreme Court observed that the provisions of these Rules of Order 30 being enabling provisions do nor: prevent the partners of a firm from suing or being sued in their individual names. If, however, under some misconception persons doing business as partners outside India do file plaint in the name of the firm, they are misdescribing themselves as the suit instituted is by them, though being known collectively as a firm. It was further held that in fact, the suit is by all the partners of the firm with a defective description of themselves. In these circumstances, civil court would permit under provision of Section 153 of the Code of under or Order 6 Rule 17 an amendment of the plaint to enable a proper description of the plaint to appear in it in order to assist the court to determine the real question or issue between the parties. In view of the definition of 'firm' in Section 4 of the Indian Partnership Act, a firm is collective name for the Individual members who constitute the partnership. It is not a legal entity or an artificial person as a Corporation. It was held in AIR 1932 Calcutta 768 that a firm cannot as such enter into a contract. It cannot appear in its suit as a firm. However, if a partner is made a co-defendant along with firm, he may put a separate defence for himself and on behalf of the firm. The Supreme Court case (supra) was a case in which maintainability of the suit was challenged since the suit was instituted in the name of the firm. It was held that it was only a case of misdescrption of the parties. The learned Subordinate Judge instead of making himself conversant with the upto-date law has relied upon a decision of the Allahabad High Court reported in AIR 1978 Allahabad 123. The Subordinate Judge has clearly misunderstood the decision of the Allahabad High Court.
10. In AIR 1954 Himachal Pradesh 41, application under Order 40, Rule 20, CPC was dismissed by the appellate court and by the same order the appeal was dismissed as not property constituted, it was held that revision application was maintainable. In AIR 1976 Calcutta 415 order rejecting the appeal as time barred was held to be revisable.
11. The prayer of the amendment, though not necessary, was refused on untenable ground by the Subordinate Judge. The order suffers from jurisdiction error. It is strange that the Subordinate Judge instead of first deciding question of amendment proceeded to decide both the matters and passed a composite order dismissing the suit. It is difficult to know the exact reason as to why the Subordinate Judge followed such a course. If the prayer for amendment was disallowed the plaintiff had right to move this Court under Section 115 CPC. He was deprived to do so since both the matters were decided simultaneously and by a composite order. In the circumstances it is difficult to accept the contention of Sri P.K. Prasad that the revision is not maintainable only because the Subordinate Judge dismissed the suit after rejecting the amendment application. In fact, two orders have been passed in the impugned order dt. 23.2.1983 : (a) disallowing the prayer for the amendment and (b) dismissing the suit as not maintainable. It cannot be argued that the civil revision against the first part of the order is not maintainable.
12. Sri Prasad has referred to 1991 (1) PLJR 783 in which it was held that appeals admitted before this Court prior to the cut off date (the date on which the amendment Act came into force) shall be retained in this Court notwithstanding the valuation being within the pecuniary jurisdiction of the District Judge. This appeal was preferred on 27.6.83, that is, prior to the cut off date, Sri Prasad submitted that appeal was filed on 27.6.83, but it was admitted much later, hence the benefit of the decision in 1991(1) PLJR 783 (supra) is not available to the appellant. This argument is also misconceived. Their Lordships have no doubt directed that the appeal admitted prior to the cut-off date should be disposed of by this Court. In my opinion, the date of admission means the date of filing of the appeal and not the date it was admitted by the Registrar.
13. Both the preliminary objections raised by Sri Prasad are untenable for the reasons stated above. the decree passed in the suit is set aside and the revision application is allowed and amendment of plaint is allowed. The order dated 23.2.1983 is set-aside. The Subordinate Judge is directed to conclude the hearing of the suit expeditiously within six months of receipt of L.C. records which may be returned within two weeks.