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Sha Babulal and Co. Vs. B. Nagappa - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKarnataka High Court
Decided On
Case NumberRegular Second Appeal No. 825 of 1975
Judge
Reported inAIR1983Kant217
ActsLimitation Act, 1963 - Sections 21; Code of Civil Procedure (CPC), 1908 - Order 1, Rule 10
AppellantSha Babulal and Co.
RespondentB. Nagappa
Appellant AdvocateC.R. Sivaswamy, Adv.
Respondent AdvocateR. Gopal, Adv. for ;B.K. Ramachandra Rao, Adv.
Excerpt:
.....to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. 9. the learned civil judge has further stated that it is not a mere bona fide mistake or a mistake made in good faith as the registration certificate was with the plaintiff......this appeal by the plaintiff is directed against the judgment and decree dt. 19-3-1975 made by the civil judge. bellary in r. a. no. 9 of 1974 on his file, allowing the appeal on reversing the judgment and decree dt. 11-12-1973 passed by the munsiff, kudligi, in o. s. no 28/70 on his file, decreeing the suit of the plaintiff.2. the plaintiff instituted a suit for recovery of rs. 1090-25p. along with interest at 12% per annum. the plaintiff described himself as a joint family firm. subsequently, however, by an amendment, the plaintiff was changed as a partnership firm registered under the partnership act and the trial court decreed the suit holding that the suit even after the amendment was not barred by time. the defendant took up the matter in appeal and the learned civil judge raised.....
Judgment:

1. This appeal by the plaintiff is directed against the judgment and decree dt. 19-3-1975 made by the Civil Judge. Bellary in R. A. No. 9 of 1974 on his file, allowing the appeal on reversing the judgment and decree dt. 11-12-1973 passed by the Munsiff, Kudligi, in O. S. No 28/70 on his file, decreeing the suit of the plaintiff.

2. The plaintiff instituted a suit for recovery of Rs. 1090-25P. along with interest at 12% per annum. The plaintiff described himself as a joint family firm. Subsequently, however, by an amendment, the plaintiff was changed as a partnership firm registered under the Partnership Act and the trial Court decreed the suit holding that the suit even after the amendment was not barred by time. The defendant took up the matter in appeal and the learned Civil Judge raised the following points as arising for his consideration in the appeal.

(1) Whether the entries made in the Day Book Ex. P-2 as in Exs. P-2 (a) and (b) are genuine?

(2) Whether the defendant is liable to pay the past interest at 12 per cent per annum?

(3) Whether Section 21 of the Limitation Act is applicable to the case after the amendment of the plaint on 21-11-1973?

(4) What order?

3. The learned Civil Judge, reassessing the evidence on record, answered Point No. 1 in the affirmative. Under Point No. 2 he held that the plaintiff would be awarded interest only at 6%. Under Point No. 3 he held that Section 21 of the Limitation Act was applicable and the suit after amendment was barred by time and in that view he allowed the appeal set aside the judgment and decree of the trial court and dismissed the suit of the plaintiff. Aggrieved by the said judgment and decree the plaintiff has instituted the above second appeal before this Court.

4. The learned Advocate appearing for the appellant strenuously urged before me that the learned Civil Judge was not justified in holding that the suit after amendment was barred by time. He submitted that what was amended was only the description of the party and not the substitution of a new party.

5. The sole point, therefore, that arises for my consideration in this appeal is : Whether the learned Civil Judge was justified in holding that by the amendment, a new plaintiff was substituted in place of the original plaintiff.

6. Section 21 of the Limitation Act reads:

'Effect of substituting or adding new plaintiff or defendant:-

(1) Where after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party; Provided that where the court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date.'

7. In this case, there is no dispute that the suit was originally instituted in the name of 'Shah Babulal Sohanlal & Co.,' a joint family firm, Bangle Merchant, B. P. Road, Davangere City by partner Rathanchand, Subsequently, by an amendment it is charged into 'Shah Babulal Sohanlal, & Co, Partnership Firm', Bangle Merchant, B. P. Road, Davangere City by partner Rathanchand. Thus, it is obvious that a joint family firm is substituted by a registered partnership firm. The question is whether that would amount, merely to correct description of the plaintiff or substitution of a new party as contemplated under Section 21 of the Limitation Act?

8. The Supreme Court of India in Ramaprasad Dagaduram v. Vijayakumar Motilal Hirakhanwala : AIR1967SC278 has held:

'The High Court erred in assuming that addition of parties under O. 1, R. 10 (1). Civil P. C. did not attract S. 22 of the Limitation Act. The present suit was not a continuation of the original suit.'

It is true that if the original party was described as joint family firm and subsequently the description was got changed stating that the suit was by the Manager of the joint family as such, there would be an amendment with regard to the description of party. But, where a registered, firm is substituted for a joint family, it is obvious that a new party is added. It is not merely the case of correcting the misdescription of the party. Because, the parties would be entirely different. That is what the learned Civil Judge has held. I find to reason to differ.

9. The learned Civil Judge has further stated that it is not a mere bona fide mistake or a mistake made in good faith as the registration certificate was with the plaintiff. It is in that view that he has come to the conclusion that S. 21 of the Limitation Act applies to the facts of the case and the suit is barred by time as the amendment is effected after three years of the institution of the suit. I have no reason to differ.

10. In the result, therefore, the appeal fails as devoid of merits and is liable to be dismissed and I dismiss the same. No costs throughout, on the peculiar facts of the case.

11. Appeal dismissed.


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