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Sri Ram Nath Vs. Sri Kedar and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 615 of 1966
Judge
Reported inAIR1970All406
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rule 10 - Order 6, Rule 17 - Order 30, Rule 1; Limitation Act, 1908 - Sections 22(1)
AppellantSri Ram Nath
RespondentSri Kedar and ors.
Advocates:Rajendra Prasad Rai, Adv.
DispositionPetition allowed
Cases ReferredNational Building Material Supply v. J. J. Ram
Excerpt:
limitation - period of limitation - section 22(1) of limitation act, 1908 - plaint amended - whether limitation runs from the time of amendment - amendment does not introduce a new party or plaintiff - does not change nature of case - limitation will run from date of filing of original suit. - - it may be that a joint hindu family has no legal personality like a registered firm or a company......bench, amendment was allowed. the division bench observed; 'the description of a plaintiff by a firm name in a case where the code of civil procedure does not permit a suit to be brought in the firm name should properly be considered a case of description of the individual partners of the business and as such a misdescription, which in law can be corrected and should not be considered to amount to a description of a non-existent person.' the view taken by the division bench of the calcutta high court was approved by the supreme court. their lordships observed at pages 328 and 329: where a suit is filed in the name of a firm it is still a suit by all the partners of the firm unless it is proved that all the partners had not authorised the suit. a firm may not be a legal entity in the.....
Judgment:
ORDER

1. This civil revision by the plaintiff arise out of a suit for the recovery of a sum of money. The suit was brought by a firm Harsukbrai Sagarmal through Sagarmal against Achhaibar and others to recover Rs. 840 on account of the price of cloth purchased by defendants from the plaintiff and on account of interest on the price of the cloth. The suit was filed on 30-4-1957. Later the plaintiff applied for amendment of the description of the plaintiff The amendment, was allowed on 13-8-1962. The words 'Firm Harsukhrai Sagarmal Makua Baragaon Zariya' preceding the word 'Sagarmal' were deleted from the description of the plaintiff. Various pleas were raised in defence. It was pleaded that the claim was barred by time. Munsif, Mohamdabad, who tried the suit, overruled the plea of limitation raised in defence, and held that the claim was within time. The plaintiff's claim was partly decreed. The trial Court passed a decree for a sum of Rs. 647/-/3 with interest.

2. The defendants appealed; and the plaintiff filed a cross-objection. The Civil Judge Azamgarh dismissed the cross-objection, and allowed the appeal. It was held that the plaintiff's claim was barred by time. Sagarmal appears to be dead. His son Ram Nath has filed this civil revision against the appellate decision of the Civil Judge. Azamgarh.

3. When the Civil revision came before a single Judge of this Court, hefound that he was unable to agree with a decision of a single Judge of this Court as regards the effect of such an amendment of the plaint. He therefore, referred the case to a larger Bench. The question for consideration in this civil revision is whether the plaintiff's claim was within limitation.

According to the plaintiff, cause of action arose on 304-1954. The suit was filed on 30-4-1957. If we treat 30-4-1957 as the date of filing the suit, the claim would appear to be within limitation. But the learned Civil Judge relied on the fact that amendment was ordered on 13-8-1962. By that time the claim had become barred by time. It was therefore, held that the claim was barred by limitation. The question, therefore, arises whether the suit should be deemed to have been filed on 30-4-1957 when the plaint was presented, or on 13-8-1962 when the amendment was allowed.

4. In India Red Lead Factories Co. v. Purshottam Das. AIR 1960 Cal 327 it was held that where the plaintiff wrongly inserts the joint family trading name as defendant and then proposes to bring on record the persons forming the trading name instead of that name, the case is not one of bringing new parties on record,

5. In Purshottam & Co. v. Manilal, AIR 1961 SC 325 a suit was brought before the Calcutta High Court in the name of a firm Mani Lal and Sons. Later the plaintiff applied for amendment of the plaint. The amendment sought was to the effect that the name of the firm Mani Lal and Sons as plaintiff be struck off, and instead the names of persons, who were partners of the firm might be entered in the plaint as plaintiff. The single Judge trying the suit disallowed amendment of the plaint. When the matter went in appeal before a Division Bench, amendment was allowed. The Division Bench observed;

'The description of a plaintiff by a firm name in a case where the Code of Civil Procedure does not permit a suit to be brought in the firm name should properly be considered a case of description of the individual partners of the business and as such a misdescription, which in law can be corrected and should not be considered to amount to a description of a non-existent person.' The view taken by the Division Bench of the Calcutta High Court was approved by the Supreme Court. Their Lordships observed at pages 328 and 329: Where a suit is filed in the name of a firm it is still a suit by all the partners of the firm unless it is proved that all the partners had not authorised the suit. A firm may not be a legal entity In the sense of a corporation or a company incorporated under the Indian Companies Act. But it is still an existing concern where business is done by a number of persons in partnership. When a suit is filed in the name of a firm it is in reality a suit by all the partners of the firm ..... In the present case theplaintiff described in the plaint as the firm Mani Lal & Sons was a mere mis-description capable of amendment and not a case where a plaint had been filed by a non-existent person and therefore a nullity.'

6. The learned counsel for the defendants-respondents relies upon a decision of Gyanendra Kumar, J. in National Building Material Supply v. J. J. Ram, AIR 1965 All 586. In that case it was held that a suit instituted by the joint family business in the name of the assumed business title was a suit by a person who did not exist and was therefore. a nullity. Hence there can be no amendment of the description of such plaintiff who did not exist in the eye of law when there was nothing to indicate in the amendment application that the plaintiff or any other member of the joint family business was under any bona fide mistake, error or misapprehension. Moreover substitution of the name of a member of the family as a plaintiff during the pendency of the suit would take effect from the date of such substitution or addition, and the suit deemed to have been instituted by him on the date when he was so made a party.

7. In that case the decision of the Supreme Court in AIR 1961 SC 325 was brought to his notice. But he distinguished the case before him from the case of Purshottam & Co., AIR 1961 SC 325 on the ground that the case before him related to a joint Hindu family, whereas the case before the Supreme Court was of a partnership firm. We are of the opinion that the principle laid down by the Supreme Court in AIR 1961 SC 325 applies to a case of a joint Hindu family also. It may be that a joint Hindu family has no legal personality like a registered firm or a company. But it is not correct to say that a joint Hindu family has no existence at all.

8. On examining the plaint. In the present case, we notice that initially the suit was brought in name of the firm 'Harsukhrai Sagarmal' through Sagar-mal. In the amended form the suit stands in the name of Sagarmal as an individual. But the plaintiff's case all along has been that the business in question belongs to the joint Hindu family, and Sagarmal is the Manager of the joint Hindu family. The substance of the case is not altered in spite of the amendment permitted by the trial Court on 13-8-1962. This is not a case where a new plaintiff has been introduced in the suit

9. The learned Civil Judge relied upon Section 22 (1) of the Limitation Act Sub-section (1) of Section 22 of the Indian Limitation Act 1908 ran thus: 'Where after institution of a suit 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.' In order to get the benefit of this provision, the defendants had to make out that a new plaintiff has been added in the suit. As explained above, no new plaintiff has been added in the present suit. All that was allowed by the Court on 13-8-1962 was an alteration In the description of the plaintiff. Since no new plaintiff was introduced, there was no room for applying Section 22 (1) of the Limitation Act. The suit should be treated as filed on 30-4-1957, That was within limitation.

10. The learned Civil Judge did not enter into the merits of the case on the ground that the suit was barred by limitation, We have held that the plaintiff's claim was within limitation. The lower appellate Court will now have to dispose of the appeal on merits.

11. The civil revision is allowed with costs. We set aside the judgment and decree of the learned Civil Judge, Azamgarh dated 28-1-1966, and remand the civil appeal No. 472 of 1963 for decision on merits.


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