Singh v Bhasker and Company (Civil Appeal No. 11 of 1956) [1956] EACA 7 (1 January 1956)

## APPELLATE CIVIL

### Before SIR OWEN CORRIE, J.

## **GURBAKSH SINGH, Appellant**

# BHASKER AND COMPANY, Respondents

# Civil Appeal No. 11 of 1956

Civil Procedure and Practice Order 29, rules 1 and 9—Institution of suit by individual in a name other than his own—Plaintiff suing in a business name.

The suit was instituted in the name of "Bhasker and Company". The Resident Magistrate ruled that Order 29, rules 1 and 9 appear to be the case of an individual suing in a business name. On appeal this was submitted to be an error in law.

Held (31-7-56).—It is not open to a single person carrying on business under some name other than his own to sue in the name under which he carries on business.

Appeal allowed.

Case cited: George & Co. v. Pritam's Auto Service, Civil Suit No. 1804 of 1955.

#### F. R. de Souza for appellant.

$R. D.$ Patel, for respondent.

Editor's Note.-In Velji Arjan Patel v. National Contractors (1954) 21 E. A. C. A. 39 the Court of Appeal for Eastern Africa held that an individual has no right to institute proceedings in his business name.

JUDGMENT.—This is an appeal from a judgment of the Resident Magistrate, Nairobi, given on 9th April, 1956, in Civil Case No. 1042 of 1956.

The sole ground of appeal is that the learned magistrate erred in law in holding that neither Order XXIX, rule 1 or rule 9 has any application to the position of a firm owned by a person; and that a sole proprietor has a right to sue and can properly sue in the firm name and not in his own name "trading as proprietor of such firm".

In support of this appeal, Mr. De Souza has referred to various English and Indian decisions: but it is unnecessary that I should discuss them in view of the fact that he has also cited the judgment of Mayers J., in George and Company v. Pritam's Auto Service, Civil Case No. 1804 of 1953 (unreported). In that case precisely the same point was taken, and the Court held that it is not open to a single person carrying on business under some name other than his own to sue in the name under which he carries on business.

That judgment is binding upon me. The respondent has not filed a reply asking that he be allowed to amend his plaint, and that question is therefore not now before this Court.

The appeal is allowed; the judgment of the Resident Magistrate's Court is set aside and the respondent's suit is dismissed with costs here and below.