Summary
A suit for eviction against a sole proprietorship does not become liable to rejection under Order VII Rule 11 CPC merely because the plaint was amended to substitute the proprietor for the trade name. Order XXX Rule 10 CPC is only enabling; the proprietor is the real party, so the High Court erred in rejecting the plaint on that ground.
Issues
- Whether a plaint for eviction discloses no cause of action, and is liable to rejection under Order VII Rule 11 CPC, once the proprietorship concern (the lessee under a registered lease deed) is replaced in the cause title by its sole proprietor.
- Whether Order XXX Rule 10 CPC requires that a proprietorship concern be sued in its trade name rather than through its proprietor.
Provisions considered
- Order XXX Rule 10, Code of Civil Procedure, 1908The rule permits a person carrying on business in a name other than his own to be sued in that name as if it were a firm name. The Court read 'may' as merely enabling: a proprietorship is not a juristic person and cannot sue, though it can be sued; the rule does not debar a suit against the proprietor himself, who is the only person who defends the proprietorship, and suing the concern in its name or through its proprietor is one and the same thing. (¶¶ 4.1, 4.2, 4.3, 4.4)
- Order VII Rule 11, Code of Civil Procedure, 1908The application for rejection of the plaint rested on the claim that, after the amendment substituting the proprietor for the trade name, no cause of action was disclosed against him. The Court held the Trial Court was right to reject the application, since the cause of action accrued against the proprietor who alone signed the lease deed. (¶¶ 3.4, 3.5, 4, 4.3)
- Order VI Rule 17, Code of Civil Procedure, 1908The amendment deleting the lessee trade name and substituting its proprietor as representative of the lessee had been allowed by an order that was never challenged and attained finality. (¶ 3.3)
Held
- A proprietorship concern is only a trade name under which an individual carries on business; it is not a juristic person and cannot be equated with a company or a partnership firm. It cannot sue, though under Order XXX Rule 10 CPC it can be sued. (¶¶ 4.1, 4.3)
- Order XXX Rule 10 CPC is enabling: the word 'may' indicates the proprietorship may be made a party, but it does not mean that impleading the proprietor is insufficient. The proprietor alone defends the proprietorship, so once he is on record as representing it no prejudice is caused and the rule does not bar a suit against him. (¶¶ 4.2, 4.4)
- Whether a proprietorship is sued in its own name or through its proprietor is one and the same thing. Where the proprietor alone signed the lease deed and no third party's interest was affected, the High Court took a hyper-technical view in rejecting the plaint under Order VII Rule 11 CPC after the amendment substituting the proprietor; the Trial Court rightly dismissed that application. (¶¶ 4, 4.3, 4.5)
Result
Appeal allowed; High Court's order in the civil revision set aside; Trial Court to proceed in accordance with law and decide the suit on its merits; pending applications disposed of.