Samrathrai Khetsidas Vs. Kasturbhai Jagabhai - Court Judgment

Mirza, J.

1. Mr. Bhagvati on behalf of the plaintiffs has raised an issue (No. 8) whether the counter-claim as framed is maintainable. The objection to the counter-claim is with regard to its title. The title of the counter-claim is :-

Messrs. Kasturbhai Jagabhai, a firm carrying on business at Shaikh Memon Street without the Fort of Bombay. Plaintiffs.

v.

Messrs. Samarthrai Khetssydas, a firm carrying on business at Sheikh Memon Street without the Fort of: Bombay. Defendants.

2. The written statement is headed :

The written statement and counter-claim of Jagabhai Lallubhai the sole proprietor of the defendants' firm abovenamed.

4. Order XXX of the Civil Procedure Code enables suits to be brought by or against firms and persons carrying on business in names other than their own. The firm name is treated as a compendious description of the several partners it comprises. For a suit in the name of a firm to be maintained it must satisfy the provisions of Order XXX, Rule 1 of the Civil Procedure Code, viz., that there must be. two or more persons claiming as partners and carrying on business in British India. In that case they may sue in the name of firm (if any) of which they were partners at the time of the accruing of the cause of action. It is clear from this rule that a firm consisting of a sole proprietor cannot bring a suit in the name of the firm, but must sue in his own name. If this counter-claim is to be treated as a separate suit, the suit would not be maintainable.

5. There is no provision in the Civil Procedure Code for making a counter-claim, although a set off' is permitted to a defendant. Our High Court Rules, however, allow the making of counter-claim by defendants. Rule 119B of the High Court rules provides that the defendant in a suit may set up by way of counter-claim against the claims of the plaintiff) any right or claim, whether such counter-claim sounds in damages or not, and such counter-claim shall have the same effect as a cross-suit, so as to enable the Court to pronounce a final judgment in the same suit, both on the original and on the counter-claim. There is no provision in this rule for a counter-claim to have a title as that of a separate suit. The separate title given in the written statement appears to be superfluous. Does the description in rule 119B that such counter-claim shall have the same effect as a cross-suit convert the counter-claim into a cross-suit to which the ordinary provisions of the Civil Procedure Code would apply Order XXX, Rule 10 enables a plaintiff to sue any person carrying on business in a name or style other than his own name in such name or style as if it were a firm. The plaintiffs were entitled, therefore, to sue the defendant as a firm although the firm consisted of a sole proprietor and no partners. Is the defendant firm under these circumstances entitled under provisions of rule 119B to maintain the counter-claim In such a case would it be necessary or permissible to add a further title to the written statement and counter-claim whereby the sole proprietor of the firm would be set out as plaintiff in the counterclaim and the original plaintiffs as defendants to the counterclaim In such a case the written statement and the counterclaim would have to be signed not once only as contemplated by the general rules but twice over. In one capacity the person making the counter-claim would have to sign the name of the firm as the defendant to the suit and ho would sign his own name as the plaintiff in the counter-claim. Such a procedure, in my opinion, would create complications which are not contemplated by the High Court Rules. In my judgment, the provisions of the High Court Rules supersede and override those of the Civil Procedure Code, Schedule I. Rule 119B entitles the defendant in a suit in general terms to set up a counter-claim. I find nothing in the rule to exclude a defendant firm properly sued under the provisions of Schedule I, Order XXX, Rule 10, of the Civil Procedure Code from making a counter-claim. If the counter-claim had not borne a separate title, there would be no objection in my opinion to a defendant firm consisting of a sole proprietor maintaining a counter-claim under the provisions of Rule 199B. The provision for having a title to a counter-claim is set out in Rule 121 of the High Court Rules as follows:-

Where a defendant by his written statement sets up any counter-claim which raises questions between himself and the plaintiff along with any other persons, he shall add to the title of his written statement a further title similar to the title in a plaint...

6. That is not the case in the present suit. The counterclaim here is restricted to the plaintiffs in the original suit. Had there been several defendants to the action and the defendant firm was making counter-claim against the plaintiff along with some or all his co-defendants or any other persons it would have been incumbent on him to set out a title to the counter-claim. That is not the case here. The title to the counter-claim is unnecessary and may therefore be struck off. If this is done there can be no objection to the maintainability of the counter-claim. The heading of the written statement and counter-claim makes it clear that it is the counter-claim of Jagabhai the sole proprietor of the defendant firm. The plaintiffs are riot taken by surprise. They have not filed a reply to the counter-claim and have nowhere before set out this objection. They did not rely upon this objection when they applied to the Chamber Judge for an order to have the counter-claim struck out. I order, therefore, that the title of the written statement and counter-claim be amended at the defendants' costs by the striking out therefrom the title of the counter-claim. The suit and the counter-claim will proceed.

7. I answer issue No. 8 in the affirmative.