Mahabir Tin Works vs M/S. Sheel Seed Farm (Regd) ...
2008 Latest Caselaw 1994 Del

R- 154
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      RFA No.297/1989

                           Date of decision: 11th November, 2008

%      MAHABIR TIN WORKS                       ..... Appellant
                    Through : Mr. Rajiv Aneja, Adv.

                  versus

       M/S. SHEEL SEED FARM (REGD)
       SONAWAR BAGH                               ..... Respondent
                      Through : None.

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE J.R. Midha

1.       Whether Reporters of Local papers may
         be allowed to see the Judgment?

2.       To be referred to the Reporter or not?

3.       Whether the judgment should be
         reported in the Digest?

Pradeep Nandrajog, J. (Oral)

1. Whatever be the worth of the success for the appellant,

a victory is staring the appellant, but we do not know whether

the appellant would reap the harvest thereof. The respondent

is based in Sonawar Bagh, Shrinagar, a place where the

appellant may hardly possibly reach, if the situation in the

valley does not improve.

2. The appellant had filed a suit for recovery of Rs.38,000/-

which has suffered a dismissal on account of the finding

returned that a sole proprietary firm is not a juristic entity and

hence can not sue. The merits of the claim has not been

adjudicated.

3. Indeed learned counsel for the appellant concedes that a

sole proprietary firm can not sue in its name. The suit has to

be filed in his own name by the sole proprietor and in the

plaint he may disclose that he is carrying on business under

the name and style of the sole proprietary firm.

4. But, what is to the advantage of the appellant is that an

application was filed under Order 16 Rule 7 CPC to correct the

memo of parties which was dismissed by the learned Trial

Judge.

5. Suffice would it be to state that a wrong description of

the name of the plaintiff can always be corrected. Suffice

would it be to state that laws of procedure are intend to

subserve the cause of substantive justice unless the

compelling language of a procedural law leaves no scope to

take the contrary view. Further, attempt has to be made to

interpret the procedural law so that it furthers the cause of

substantive justice.

6. We are afraid that the Learned Trial Judge has taken a

view when appellant was not permitted to amend the cause

title.

7. We allow the appeal and set aside the impugned

judgment and decree dated 02.02.1989 by permitting the

appellant to amend the cause title of the plaint by showing

that the plaintiff is the sole proprietor and not the firm.

8. We restore the suit for fresh adjudication as per law

since claim on merits has not been adjudicated.

9. Learned counsel for the appellant states that he would

obtain instructions from his client whether the suit should be

further prosecuted in as much as the end result of the suit

seems to be nothing but a dark alley for the appellant.

10. No costs.

PRADEEP NANDRAJOG, J

J.R. MIDHA, J NOVEMBER 11, 2008 mk