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Vyas Automobiles Vs. Central India Motors and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 57 of 1958
Judge
Reported inAIR1959MP425
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rule 10(1) - Order 6, Rule 17; Limitation Act, 1908 - Sections 22; Partnership Act
AppellantVyas Automobiles
RespondentCentral India Motors and ors.
Appellant AdvocateK. Gandhe, Adv.
Respondent AdvocateG.L. Ojha and ;V.V. Kulkarni, Advs.
DispositionRevision allowed
Cases ReferredBalwantrao Ambaram v. Baldeodas Manilal and Co.
Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - and that the defendant has failed to pay the price of the same......the plaint in the suit so as to, convert the suit originally filed by shri lilaram as karla of a joint hindu family firm bearing the name m/s central india motors into one as on, behalf of m/s central india motors, a firm registered under the indian partnership act.2. in the suit, as originally filed, the plaintiff alleged that m/s central india motors was a joint hindu family firm of which the karta was lilaram; that the plaintiff firm sold to the defendant govindsingh, who was the sales manager and representative of the defendant m/s vyas automobiles nagpur, five motor car tyres and seat-covers; and that the defendant has failed to pay the price of the same. the plaintiff sued to recover the price of these goods together with sales tax and interest thereon.in its written statement.....
Judgment:
ORDER

P.V. Dixit, J.

1. This is a petition to revise an order of the civil judge second class, Indore, permitting, the plaintiff non-applicant M/s Central India Motors to amend the plaint in the suit so as to, convert the suit originally filed by Shri Lilaram as Karla of a joint Hindu family firm bearing the name M/s Central India Motors into one as on, behalf of M/s Central India Motors, a firm registered under the Indian Partnership Act.

2. In the suit, as originally filed, the plaintiff alleged that M/s Central India Motors was a joint Hindu family firm of which the Karta was Lilaram; that the plaintiff firm sold to the defendant Govindsingh, who was the Sales Manager and representative of the defendant M/s Vyas Automobiles Nagpur, five motor car tyres and seat-covers; and that the defendant has failed to pay the price of the same. The plaintiff sued to recover the price of these goods together with sales tax and interest thereon.

In its written statement the defendant petitioner raised the objection that the plaintiff-firm was not a joint Hindu family firm but that it was a partnership firm and as it had not been registered the plaintiff's suit was not maintainable because of the provisions of Section 69 of the Partnership Act. The plaintiff's suit was filed on 25th February 1953 and the petitioner's written statement was filed on 3rd July 1954.

On 23rd August 1957 the plaintiff filed an application for amendment of the plaint so as to allege that the firm M/s Central India Motors was a firm registered under the Indian Partnership Act of which Lilaram and Lalchand were two partners, and for a correction in the title of the plaintiff in accordance with this allegation. The defendant opposed the amendment. It was, however, allowed by the trial Judge on the ground that the amendment intended to be made by the plaintiff was, merely a correction of misdescription of the plaintiff's name. The defendant has, therefore, preferred this revision petition.

3. Mrs. Gandhe, learned counsel for the petitioner, urged that this was not a case of mere mis-description; that the plaintiff's suit was originally on behalf of a joint Hindu family firm and by the amendment it was converted into one on behalf of a firm alleged to have been registered under the Indian Partnership Act; that, therefore, this was a case of substitution of one plaintiff for another; and that Section 22 of the Limitation Act applied to such a substitution which could not be allowed by amendment of the plaint when its effect was to deprive the defendant of the defence of limitation.

4. In my judgment, the order permitting the plaintiff to amend the plaint as prayed by him cannot be upheld. If the amendment had been one for the correction of a mere misdescription of the plaintiff's name or title, then Section 22 of the Limitation Act would not be a bar to the alteration of the plaint. But the amendment made by the plaintiff cannot in any sense be regarded as coming under the head of mere misdescription. The effect of the amendment is to substitute one plaintiff for another. The plaintiff's suit originally was on behalf of a joint Hindu family firm trading under the name and style of M/s Central India Motors and it was filed by Lilaram as Karta of the joint Hindu family.

After the amendment the suit becomes one on behalf of M/s Central India Motors, a firm said to have been registered under the Indian Partnership Act of which the partners are said to be Lilaram and Lalchand. Now, it cannot be denied that a joint Hindu family firm is quite a different legal entity from a firm registered under the Indian Partnership Act. Whereas a joint family partnership is created by the operation of law, a partnership under the Indian Partnership Act is one arising out of a contract. In the case of a misdescription there is only an alteration in the name of the plaintiff the legal entity of the person or body suing remains the same.

In the substitution of one plaintiff for another there is a change in the legal person or entity suing. If then a joint Hindu family firm is a distinct entity from a firm under the Indian Partnership Act, the amendment made by the plaintiff so as to convert the suit from one on behalf of a joint Hindu family firm to one as on behalf of a firm constituted under the Indian Partnership Act cannot be said to be a case of mere misdescription. If as I think this is a case of substitution, then Section 22 of the Limitation Act would be a bar to the alteration of the plaint prayed for by the plaintiff.

The plaint, as originally filed, cannot in the eye of law be regarded a,s a plaint on behalf of the Central India Motors, a firm registered under the Indian Partnership Act. The plaint on behalf of this firm being non est on 25th February 1953 when the suit as on behalf of a joint Hindu family firm was instituted it would be regarded as deemed to have been instituted on behalf of the firm constituted under the Indian Partnership Act only from the date of the amendment substituting the original plaintiff for the new plaintiff.

On this date admittedly the plaintiffs suit as on behalf of M/s Central India Motors a firm registered under the Indian Partnership Act, was barred by time. An amendment of a plaint, if it substitutes one legal entity for another, after the period of limitation cannot be allowed (see Vyankatesh Oil Mill Co. v. N. V. Velmahomed, AIR 1928 Bom 191; Krishnaji v. Hanmaraddi, AIR 1934 Bom 385; Mangharam v. Haji Sorik Punhoo, AIR 1939 Sind 172.)

5. Mr. Kulkarni, learned counsel for the plaintiff, did not dispute that a joint Hindu family firm was quite distinct from a firm constituted under the Indian Partnership Act. But he contended that the partners of the two firms were the same; that, therefore, the correction by an amendment in the plaint was only a matter of form and not substance; and that, therefore, neither Order 1 Rule 10 C. P. C. nor Section 22 of the Limitation Act was a bar to the alteration of the plaint as prayed for.

I do not agree. If as I think, a joint Hindu family firm is quite a distinct legal entity from a firm registered under the Indian Partnership Act, then it necessarily follows that the amendment sought to be made by the plaintiff is a case of a substitution of one plaintiff for another. The fact that in the two firms the same person were partners does not in any way alter the position of the two firms being different legal entities. Learned counsel for the plaintiff referred me to the decision in M/s Balwantrao Ambaram v. Baldeodas Manilal and Co., 1957 M. P. C. 122. The decision is not in point here.

In that case, a joint Hindu family firm filed a suit in the firm name and as this could not be done under Order 30, Rule 1, C. P. C. applied for an amendment of the plaint by substituting the names of the individual proprietors. The amendment was allowed. It was held by this court that it was only a case of misdescription of the plaintiff and not a case where it could be said that the action was commenced by a non-existing person. Here, it is plain enough that on the date the suit was instituted that there was no plaint on behalf of the firm as constituted under the Indian Partnership Act. Under Order 1 Rule 10(1) C. P. C. a right plaintiff can be substituted in place of a wrong one if his right to sue had not become barred by Section 22 of the Limitation Act,

6. For these reasons, this petition is accepted,the order dated 12th December 1957 is set asideand the plaintiffs application for amendment ofthe plaint is rejected. The petitioner shall havehis costs of the application from the non-applicantM/s. Central India Motors.


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