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Motilal Jasraj Vs. Chandmal Hindumal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Extraordinary Application No. 173 of 1922
Judge
Reported inAIR1924Bom155; (1923)25BOMLR1081
AppellantMotilal Jasraj
RespondentChandmal Hindumal
Excerpt:
civil procedure code (act v of 1908), order xxx - suit against firm-firm described as owner by a person-death of the person before suit-addition of his heirs-suit deemed to be instituted on the day it was first brought.;on may 30, 1921, the plaintiff sued 'chandmal as manager and owner of the shop manmal chandmal' on a cause of action which accrued on may 16, 1918. chandmal having died on september 27, 1920, his heirs were, on plaintiff's application, brought on the record on september 27, 1921. the trial court dismissed the suit on the preliminary ground that the suit must be deemed to have boon instituted against the heirs on the day on which they were brought on the record, and that as such it.;reversing the order, that though not in form yet in substance the plaintiff sued the firm of..........and owner of the firm of 'fojmal jasraj, sued the defendant originally, which was the firm of 'manmal chandmal'. the suit was in respect of goods said to have been supplied by the plaintiff on january 8, 1918. it was also said that there was a part payment on may 16, 1918. the suit was filed on may 80, 1921, which was the opening day after the summer vacation of that year. the description of the defendant as given in the suit originally was 'chandmal hindumal as manager and owner of the shop 'manmal chandmal.'' it appears, however, that chandmal had died on september 27, 1920. an application to bring the heirs on record was made in august 1921, and an order was made thereon directing two persons manmal hindumal and kesarimal brijlal as the heirs of chandmal on september 27, 1921, to.....
Judgment:

Lallubhai Shah, Kt., Ag. C.J.

1. The question in this application is one of limitation. It arises on the following facts. The plaintiff, who is the manager and owner of the firm of 'Fojmal Jasraj, sued the defendant originally, which was the firm of 'Manmal Chandmal'. The suit was in respect of goods said to have been supplied by the plaintiff on January 8, 1918. It was also said that there was a part payment on May 16, 1918. The suit was filed on May 80, 1921, which was the opening day after the summer vacation of that year. The description of the defendant as given in the suit originally was 'Chandmal Hindumal as manager and owner of the shop 'Manmal Chandmal.'' It appears, however, that Chandmal had died on September 27, 1920. An application to bring the heirs on record was made in August 1921, and an order was made thereon directing two persons Manmal Hindumal and Kesarimal Brijlal as the heirs of Chandmal on September 27, 1921, to be brought on the record. The learned Judge dismissed the suit with costs on the preliminary ground that the suit must be taken to have been filed on the date on which these heirs were brought on the record, and that on that footing it was time-barred. We think, however, that though not in form, but in substance, the plaintiff sued the firm of 'Manmal Chandmal'. If he had simply described the defendant as 'the firm of Manmal Chandmal' without mentioning the names of the owners or partners of the firm, the description would have been sufficient, having regard to the provisions of Order XXX of the Civil Procedure Code. In that view the further description of the defendant Chandmal Hindumal as 'the manager and owner of the firm' may be treated as a mere surplusage. The suit would have been good if the firm had been sued without any farther description, and it seems to us that on May 30, 1921, when the suit was filed, undoubtedly the firm was sued. It would be open then on service of the summons upon this firm for any of the partners or owners of this firm at the date of the suit, to come forward to defend the suit. It is really unnecessary to have the heirs of Chandmal on the record as such. The suit could have been, and should have been, treated as having been filed against the firm of 'Manmal Chandmal' ; and in that view it could not be said that it was beyond time on the footing that the heirs were brought on the record in September 1921.

2. If there is any other question of limitation in the suit, that will have to be considered when the suit comes to be heard. But the present finding on the first issue that the suit is barred cannot be accepted; and the suit must be heard and decided on the footing that it was properly filed on May 30, 1921, as against the firm of 'Manmal Chandmal.'

3. We make the rule absolute, set aside the decree of the lower Court, and send back the case for disposal according to law.

4. Costs of this application to be costs in the suit.


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