(Prayer:Second Appeal filed under Section 100 of the Civil Procedure Code against the judgement and decree made in A.S.No.47 of 2008, dated 27.4.2009, on the file of Subordinate Judge, Valliyoor reversing the judgement and decree made in O.S.No.239 of 2006, dated 27.3.2007 on the file of the Principal District Munsif Court, Valliyoor.)
1. The defendant in the original suit is the appellant in the Second Appeal. The suit was filed by the respondent herein for bare injunction. The learned trial Judge dismissed the suit by a judgement and decree dated 27.03.2007 in O.S.No.239 of 2006. On appeal, the lower appellate Court reversed and set aside the same and decreed the suit as prayed for by a judgement and decree dated 27.04.2009 in A.S.No.47 of 2009. Hence the appellant(defendant) is before this Court in the Second Appeal.
2. The arguments advanced by Mr.S.Sivathilakar, learned counsel for the appellant and by Mr.D.Nallathambi, learned counsel for the respondent are heard. The materials available on record are also perused and taken into consideration.
3. The Second Appeal came to be admitted on 10.08.2009 formulating four questions designated as A,B,C and D and one more question without any number or such designation as substantial questions of law. Upon considering the judgements of the Courts below and the other materials, I am of the considered view that the substantial questions of law have not been framed in a proper manner and hence they require to be re-formulated and re-cast after omitting unnecessary questions and correcting the mistakes found in the respective questions. The following are the substantial questions of law based on which the judgement in this case has got to be pronounced:
1. Whether the lower appellate Court has committed an error in law in not adverting to the maintainability of the suit as the nature of composition of the plaintiff concern has not been stated in clear terms in the plaint?
2. Whether the lower appellate Court committed an error in law in not adverting to the fact that the plaintiff had taken mutually destructive pleas, one based on derivative title and the other one being adverse possession?
4. The respondent herein/Plaintiff is described in the plaint as ''M/s.Narasu's Spinning Mills, Salem, through its Managing Director represented by his authorised signatory Mr.G.Paneerselvam''. In the long cause-title also, the very same particulars have been provided with an addition of the father's name of G.Paneerselvam and the Office particulars of the above said concern namely ''No.16, Court Road, Salem''. No-where in the plaint, the nature of composition of the plaintiff concern has been spelt out. The cause-titles, both short and long, suggest the plaintiff to be a company, because it has been stated to be filing the suit through its Managing Director. However, the Managing Director in-turn is said to have been authorised G.Paneerselvam as his authorised signagtory. The usual practice shall be to name the persons by their position in the company to be authorized signatories. When there is a Managing Director, he cannot have another person as his authorised signatory. The cause-title thus provides utter confusion.
5. Contrary to the said possible inference, Ex.A10 has been produced as an authorization given in favour of G.Paneerselvam, Son of Gopal. In the said letter, he is referred to as the Electrical Engineer of the plaintiff concern. It reads as follows:
''TO WHOMSOEVER IT MAY CONCERN
We hereby authorize Sri. G.Panneerselvam, Son of Gopal – our Electrical Engineer to act and to sign on behalf of us on all the matters concerning our Enercon Make Wing Energy Generator installed at Kattunkulam. His specimen signature is enclosed herewith for your reference.
for Narasu's Spinning Mills
Signature of G.Paneerselvam
For Narasu's Spinning Mills
The said document gives rise to an inference that the Plaintiff concern is a partnership firm, since the signatory of the letter is described as Partner. P.W.1 also referred to the plaintiff concern as a partnership firm. His testimony in this regard in vernacular is as follows:
6. It is pertinent to note that though the Plaintiff concern is said to be filing the suit through its Managing Director, name of the Managing Director is not found mentioned in the Plaint. Visweswaran, who signed in Ex.A10 is not described to be the Managing Director and on the other hand, he is described to be a partner. In case, the Plaintiff concern is a company, the suit could have been filed in the name of the company itself without there being anybody to represent it. In the verification column alone, the authority of the verifying party need be mentioned. To show the corporate personality, the registration particulars of the company and address of its registered office should have been furnished. In the case on hand, such particulars are not furnished. The authorization, if any, to be given by the company should be made by a resolution of the Board of Directors. It has not been done so in this case. If it is taken as a partnership firm as revealed in Ex.A10 and as deposed by P.W.1, then, unless it is a registered firm, no suit in the name of the partnership firm can be mainained. Section 69 of the Partnership Act is to the effect that no suit to enforce a right arising from a contract or conferred by the Partnership Act shall be instituted in any Court by or on behalf of any persons suing as a partner. ''Section 69 bars a suit if the partnership firm is not registered and the person suing on behalf of the firm is not shown in the register of the firms as a partner in the firm concerned. ''
7. So far as a suit by or against a partnership firm is concerned, it is only by virtue of a concession provided under Order 30 Rule (1) C.P.C., such suits are permitted to be filed and not because the firm possesses any jurisdic personality apart from the partners constituting partnership. In case, the suit is filed in the name of the partnership firm, when it is demanded in writing by or on behalf of the defendants, the names and place of residence of all the persons constituting the firm should be declared forthwith. If it is a proprietory concern, Order 30 Rule 10 of Civil Procedure Code enables the persons who enter into transactions with the proprietory concern to file the suit against the proprietor in the name of the business concern and it shall be deemed to be a suit filed against the individual, namely the proprietor. Rule 10 does not permit the person, who carries on the business in a name other than his own, to file a suit in the name of the business. It is an enabling provision making the persons transacting with a business concern which is a proprietory concern in the name of the business concern because the customers may not know who the proprietor is.
8. A perusal of the pleadings made in the plaint, Ex.A10 and the evidence of P.W.1 will show that the suit has been filed in the name of a business concern without describing the nature of its composition viz., whether it is an incorporated company or partnership firm or proprietory concern. As such, the contention of the appellant herein/defendant that the suit as framed is not maintainable cannot be brushed aside as having no substance in it. The objection to the maintainability of the suit goes to the root of the case. The learned lower appellate Judge failed to consider the said question regarding the maintainability of the case, when the plaint pleading is nebulous as to the nature of composition/status of the business concern shown as the plaintiff.
9. For the reasons stated above, this Court answers the first substantial question of law in favour of the appellant herein/defendant and against the respondent herein/plaintiff, holding that such an ambiguous plea relating to the constitution/status of the plaintiff concern will make the suit itself not maintainable.
10. Though the answer given to the first substantial question of law is enough to dispose of the Second Appeal, this Court wants to point out yet another mistake committed by the learned lower appellate Judge in reversing the decree of the trial Court, by providing an answer to the question formulated as second substantial question of law. The respondent herein/plaintiff claimed a relief in respect of the suit property based on supposed title. The respondent/Plaintiff claimed to have derived title by way of purchase. However, another stand which is destructive of the derivative title also came to be taken. Such a stand is one to the effect that the respondent/Plaintiff had perfected title by adverse possession. The very fact that a person claims to have perfected title by adverse possession would give an inference that the party making such a plea is not confident of succedding on the plea of derivative title. Of course, such alternative pleas can be taken by the plaintiff, but before the trial starts the plaintiff must elect to proceed on any one of the pleas and give up the other. If the plaintiff does not do so, it will be an act amounting to digging one's own grave. Both the pleas are mutually contradictory and exclusive, because the claim of derivative title negatives the presence of the necessary animus to possess the property adverse to that of the real owner. Similarly, the plea of adverse possession will amount to giving up the plea of derivative title. Since the respondent herein/plaintiff has not chosen to elect one out of the two mutually exclusive pleas, the respondent herein/plaintiff is bound to fail on that score also.
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/> 11. The learned lower appellate Judge has failed to consider the above said aspect and the same resulted in the impugned decree of the lower appellate Court reversing the decree of the trial Court by which a suit had been dismissed. Hence the second substantial question of law is also answered in favour of the appellant holding that the lower appellate Court committed an error in law in not adverting to the fact that the respondent herein/Plaintiff had taken two mutually exclusive pleas and failed to elect one of them before trial and that such a failure would make the plaintiff dis-entitled to the relief sought for. In view of the answers given to the first and second substantial questions of law, the Second Appeal shall succeed. 12. Accordingly, the Second Appeal is allowed. The decree of the lower appellate Court, dated 27.04.2009 made in A.S.No.47 of 2008 is set aside and the decree of the trial Court, dated 27.03.2007 made in O.S.No.239 of 2006 is restored and confirmed on the above said grounds alone. No costs. Consequently, connected Miscellaneous Petition is closed.