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Babu Nihal Singh Vs. Musammat Najuban and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All230; 65Ind.Cas.585
AppellantBabu Nihal Singh
RespondentMusammat Najuban and anr.
Excerpt:
civil procedure code (act v of 1908), order ii, rule 2 - failure to sue for portion of claim--bona fide mistake--subsequent suit for that portion, whether maintainable. - .....1913 was, because the plaintiffs at that date were under the impression that the profits were paid annually and not, as was subsequently shown to be the fact, half yearly. in that view he accepted the authority of the case to which he refers in this judgment. in this court the learned judge upheld the decision of the lower appellate court and we think that we ought to do the same. that really is the substantial point in the appeal. the other points which are raised have no substance, and we, therefore, dismiss the appeal with costs and fees on the higher scale.
Judgment:

1. The only point in this appeal that has given us any difficulty is the question whether the plaintiffs were barred by Order II, Rule 2 from including in their claim the profits for the Kharif of 1320 Fasli. The Judge in the lower Court undoubtedly assumed that the reason why those profits had been omitted in an action which was commenced on the 29th of July 1913 was, because the plaintiffs at that date were under the impression that the profits were paid annually and not, as was subsequently shown to be the fact, half yearly. In that view he accepted the authority of the case to which he refers in this judgment. In this Court the learned Judge upheld the decision of the lower Appellate Court and we think that we ought to do the same. That really is the substantial point in the appeal. The other points which are raised have no substance, and we, therefore, dismiss the appeal with costs and fees on the higher scale.


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