JUDGMENT
1. It appears from the plaint that the first defendant Vellian was, on the 19th January 1887, engaged by the plaintiff to carry on his business in Moulmein for a period of three years, and that, accordingly, he did act as the plaintiff’s agent till the 17th December 1889, when he left Moulmein. It is charged against the first defendant that during the period of his agency he acted in contravention of the plaintiffs orders, and that, on his return to this country, he refused to render proper accounts. The plaint was presented on the 14th January 1893.
2. On the 14th August 1893, the defendants put in separate written statements, in both of which it is objected that the suit is bad for non-joinder of parties, because the plaintiff is only one of several members of a Hindu family carrying on business in partnership together. On the same day, the 14th August, certain preliminary issues were adjusted with reference to this objection. By the first of them the question of fact is raised whether “(as alleged in the plaint) the plaintiff is sole owner of the firm P.R.M.A. in Moulmein or whether such firm has other partners or belongs to a family which has other members.” On the 2nd November certain persons describing themselves as members of the family of the plaintiff Alagappaput in petition stating that Alagappa was the manager of the family business; and that the first defendant was by him alone appointed agent, and asking that the plaintiff might be permitted to proceed against the defendants.
3. On the 14th November the plaintiff himself filed a petition praying that, if the Court holds the other members of his undivided family should also be parties, they might “also be described as plaintiffs.” On the same day the trial of the preliminary issues took place. The plaintiff Alagappa was examined as a witness. He at once admitted that he was not the sole owner of the firm, but that five persons in all named by him and members of his family were interested in it. The witness proves the execution by the first defendant Vellian of the document (A) called a salary chit and explains that the letters P.R.M.A. appearing in that paper before his name Alagappa are not his own initials, but stand for the firm’s name.
4. On the evidence the Judge held that the plaintiff was not competent to maintain the suit in his own name only. He further, with reference to the petition presented on the same day but after he had expressed an opinion adverse to the plaintiff, refused to allow any addition of new parties. The suit was accordingly dismissed. The appeal was supported on alternative grounds. It was argued that the plaintiff Alagappa was competent to maintain the suit in his own name, or in the alternative that the designation of the plaintiff in the cause-title was sufficient to denote all the persons interested in the firm. There can be no doubt that as a general rule all the members of a partnership firm ought to be joined as plaintiff’s in a suit brought in respect of transactions with the partnership. It makes no difference that-the persons, carrying on business together, were also members of a Hindu family Kalidas Kevaldas v. Nahu Bhagvan I.L.R. 7 Bom. 217 and cases cited. The proposition that the manager of a Hindu family can sue without joining those interested with him is one which cannot be supported and no authority was cited in support of it save a dictum in Arunachala v. Vythialinga I.L.R. 6 Mad. 27. There can be no doubt, in the present case, that the employment of Vellian as agent was an employment in the business of the firm and that the contract was made by Alagappa on behalf of the firm. The appellant’s vakil, however, endeavoured to convince us that Magappa, though acting for the firm, made the contract in his own name under such circumstances as to entitle him to sue alone. The case of Agacio v. Forbes 14 Moore’s P.C. 160 was cited, and it was urged that similarly here Alagappa was entitled to sue alone. In Agacio v. Forbes 14 Moore’s P.C. 160 it is true that the contract made in Hongkong between the plaintiff and the defendant was made for the benefit of the plaintiff’s firm; but the consideration for it, namely, the forbearance by the plaintiff from proceedings threatened against third parties, was a consideration moving from the plaintiff alone, for he alone was in Honkgong representing his firm which carried on business in Valparaiso.
5. If, instead of being a partner, Agacio had been a mere agent of a foreign principal, the case would have come within the principle recognized in Section 230 of the Contract Act. And in considering the question of parties to an action, the case of partners and that of agent and principal stand on the same footing, the question in either case being with whom was the contract made in point of law. Lindley on Partnership, 3rd edition, page 487. For these reasons we think that the authority cited is not applicable. In the present case there is nothing to show that the right of suing on the contract was restricted to the plaintiff Lucas v. De la Gour 1 M. & S. 249. On the contrary, it appears on the face of the salary chit that the retainer is by the firm and not by Alagappa in his individual capacity. It follows that the general rule above stated requiring the joinder of all the partners must apply. See Lindley on Partnership, 3rd edition, pages 486 and 489.
6. This being so, we are asked to read the name of the plaintiff given in the cause-title as designating not Alagappa only but his partners or coparceners. It seems to us impossible, in the circumstances of the present case, to say that there is a mere misdescription as was held to be the case in Kasturchand Bahiravdas v. Sagarmal Shriram I.L.R. 17 Bom. 413. It is abundantly clear that the plaint was not read by the plaintiff’s vakil in the manner in which we are now asked to read it, for otherwise the pleader would not have gone to trial on the issue raised by the Judge with regard to the question whether the plaintiff’ had other partners. It is contended that the pleader misconstrued the plaint, but the mistake is by no means obvious, and we must assume that the party is duly represented by his pleader.
7. We are clearly of opinion that the defect is one which only could be cured by the addition of the persons who along with Alagappa constitute the plaintiff’s firm or family. It remains then to consider the question whether even at this stage those persons ought to be brought on the record. No formal application to that effect was made in the Court below nor is any such application made before us. On the respondent’s behalf it is said that the required amendment ought not now to be made, because any claim against Vellian by the partners of Alagappa would be barred by the Statute of Limitation. Even on the 14th August when the informal application was made on behalf of those persons such suit would equally have been barred. On the other hand, the plaintiff had elected to go to trial without offering to amend and therefore ought to be left to the consequence Dular Chand v. Balram Das I.L.R. 1 All. 453.
8. The case of Mohnmmud Zahoor Ali Khan v. Mussumat Thakooranee Rutta Koer 11 M.I.A. 468 486 was cited in support of the contention that the possibility of the bar of limitation afforded a reason for allowing an amendment. That case is, however, plainly distinguishable from the present and from Weldon v. Neal 19 Q.B.D. 394. In Mohummiul Zahoor Ali Khan v. Mussumat Thakoorance Rutta Koer 11 M.I.A. 468 486 the mistake made consisted not in the non-joinder of parties or the omission of any statement of claim, but in the joinder of parties who ought not to have been joined. In the result, the cause was remitted for trial on the issues touching the liability of the defendant Rutta Koer on the bond in respect of which the suit had been brought. It is not necessary to consider what would be the consequence if the other partners were joined, as to which point several cases were cited–Kalidas Kevaldas v. Nathu Bhagvan I.L.R. 7 Bom. 217; Narayana Chetti v. Sivaraman Chetti Appeal No. 31 of 1887 unreported.
9. In our opinion the amendment which, as has been observed, was never asked for in this Court or in the Court below ought not now to be made.
10. If by the amendment the defendants were deprived of the defence of limitation, then according to the view taken in Weldon v. Neat 19 Q.B.D. 394 and followed in this Court in Mallikarjuna v. Pullayya I.L.R. 16 Mad. 319 the amendment ought not to be allowed. On the other hand, if the amendment must, by the operation of Section 22 of the Limitation Act, lead to the dismissal of the suit, then it would clearly be useless.
11. The appeal is dismissed with costs.
