Mayfair Knitting Industries Ltd. vs Sanuja Moideen

Pius C. Kuriakose, J.—A company formerly named Mayfair Knitting Industries Ltd. and presently named "Mayfair (Bombay) Ltd." represented by its power-of-attorney holder Sri. T.P. Gopinath is the revision petitioner. Copy of the power-of-attorney and certified copy of the Board Resolution dated 16.10.2000 will convince anybody that the Company presently known as "Mayfair (Bombay) Ltd." came to be rechristened as such in place of its original name "Mayfair Knitting Industries Ltd." and that the said company has duly authorised Sri. T.P. Gopinath to represent the company. The revision petitioner is aggrieved by the order passed by the trial court dismissing I.A. 2606 of 2000, an application filed under Order I, Rule 10 CPC for striking out the name "Mayfair Knitting Industries Ltd." and substitute the same with the present name of the company "Mayfair (Bombay) Ltd." in the cause title.

I have gone through the impugned order. Technically, the learned Subordinate Judge had some justification for dismissing the application. But I cannot approve of the observation of the learned Subordinate Judge that since the original Director, the actual signatory to the plaint, died on 27.3.1998 and "no impleadment to substitute the Director or to represent the company in any matter has been made within the period of limitation, the suit must be obviously found as abated. The company is of course a legal person represented in this case by one of its Directors. If the Director dies, the company does not die. It is only the person who represents the company dies. At best, it can be said that an application for substitution of the name of the person who represented the company by the name of somebody who is competent to represent the company now is necessary. The situation may be one which obtains under Order XXII, Rule 10 and not one which comes under Order XXII, Rule 3. If the situation is taken as one coming under Order XXII Rule 10, ie., the interest to represent the company devolves upon another Director in place of the former Director who is no more, the question of abatement of the suit due to non-impleadment does not arise. But the revision petitioner''s position is that the situation which applies is one under Order I Rule 10 whereunder the court has ample power to strike out wrong names and substitute the same with correct names. It appears to me that the decision of the Supreme Court in Bal Niketan Nursery School Vs. Kesari Prasad, was not cited before the court below.

I would have been inclined to pass final orders on I.A. No. 2606 of 2000. But unfortunately I do not have the advantage of hearing the respondent who for some reason, notwithstanding the stiff contest before the court below, has chosen not to enter appearance before this Court. Accordingly, I set aside the impugned order and remand the matter to the court below directing that court to consider I.A. 2606 of 2000 and pass orders thereon "in the light of the observations contained herein and in Bal Niketan Nursery School (supra) and other decisions of the Supreme Court such as Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, wherein the Supreme Court says that when interests of substantial justice and those of technicalities are pitted against each other, courts must make every endeavour to advance the interests of substantial justice.

The CRP is disposed of as above. The parties will appear before the Court below on 22.5.2003.