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Firm Seth Hiralal Hazarilal Vs. Jagan Nath - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 67 of 1950
Judge
Reported inAIR1957Raj298
ActsLimitation Act, 1908 - Sections 22; Code of Civil Procedure (CPC) , 1908 - Order 30, Rule 2; Contract Act, 1872 - Sections 45
AppellantFirm Seth Hiralal Hazarilal
RespondentJagan Nath
Appellant Advocate P.C. Bhandari, Adv.
Respondent Advocate C.L. Agrawal, Adv.
DispositionAppeal dismissed
Cases ReferredRamsebuk v. Ramlall Koondoo
Excerpt:
.....- juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - 3703/-/3. it was instituted on 23rd october, 1948, in the court ot civil judge, baran, and the cause of action lor purposes of limitation was stated to have arisen on the 15th of november 1945. the defendant took a preliminary objection that the plaintiff was not the sole owner of the firm hiralal and hazarilal, but one sunderlal was also a partner, and that as the suit was riot in the name of the firm the suit was bad for nor-joinder. a preliminary issue on limitation was framed and decided against the plaintiff, and the suit was dismissed by the civil judge, baran, on 24th august, 1949. the plaintiff filed..........1945. the defendant took a preliminary objection that the plaintiff was not the sole owner of the firm hiralal and hazarilal, but one sunderlal was also a partner, and that as the suit was riot in the name of the firm the suit was bad for nor-joinder. the plaintiff filed an application on 16th february, 1849, praying lor amendment of the plaint so as to make the firm hiralal hazarilal as the plaintiff. in this application it was mentioned that sunderlal was not made a party, because he had not contributed towards the capital of the firm. it seems to have been impliedly admitted that sunderlal was a partner in the firm, and this con-clusion is confirmed by the fact that the second appeal was riled on behalf of the firm hiralal hazarilal through both seth hazarilal and sunder, the.....
Judgment:

Bapna, J.

1. This is an appeal against the judgment of the learned District Judge Baran, dated 14-12-49, by the plaintiff in a suit for recovery of money.

2. The suit was originally instituted by Hazarl-lal describing himself as the son of Hiralal, proprietor of the firm of Seth Hiralar Hazarilal. The defendant Jagannath was described as son of Lalli Bam, owner of the shop of Lalliram Jagannath at Tekneri Pachar, Madhya Pradesh. The suit was for recovery of Rs. 3703/-/3. It was Instituted on 23rd October, 1948, in the Court ot Civil Judge, Baran, and the cause of action lor purposes of limitation was stated to have arisen on the 15th of November 1945. The defendant took a preliminary objection that the plaintiff was not the sole owner of the firm Hiralal and Hazarilal, but one Sunderlal was also a partner, and that as the suit was riot in the name of the firm the suit was bad for nor-joinder. The plaintiff filed an application on 16th February, 1849, praying lor amendment of the plaint so as to make the firm Hiralal Hazarilal as the plaintiff. In this application it was mentioned that Sunderlal was not made a party, because he had not contributed towards the capital of the firm. It seems to have been impliedly admitted that Sunderlal was a partner in the firm, and this con-clusion is confirmed by the fact that the second appeal was riled on behalf of the firm Hiralal Hazarilal through both Seth Hazarilal and Sunder, The amendment was allowed by the trial Court on 19th March, 1949. The defendant raised a plea of limitation on the ground that when the proper party, viz., firm Hiralal Hazarilal was brought on record on 19th March 1949, the suit had become barred by limitation. A preliminary issue on limitation was framed and decided against the plaintiff, and the suit was dismissed by the Civil Judge, Baran, on 24th August, 1949. The plaintiff filed on an appeal, but without success. Hence this second appeal.

3. It is not disputed that the claim would become barred by time if it be considered that the suit was instituted by the proper party on 19th March, 1949, or for that matter on 16th February, 1949, when the application was made for amendment of the plaint.

4. Learned counsel for the appellant contended that the case was one only of mis-description, which could be corrected at any time alter the institution of tne suit, and the provisions of Section 22 of the Limitation Act had no application in that case, Learned counsel relied on Moti Lal Jasraj v. Chandmal Hindumal AIR 1924 Bom 155(A), Rampra-sad Shivlal v. Shnnivas Balmukund AIR 1925 Bom 527 (B); Prabhu Dayal v. Firm Prabhulal Chandmal, AIR 1954 Ajmer 7-4 (C); Deolal v. Tulararn Ram-sukh AIR 1928 Nag 319 (D); Anukul Chandra v. Dacca Dist. Board AIR 1928 Cal 485 (E).

5. On behalf of the respondent it was urged that the case was not one of mis-description, but was or adding new parties, and reliance was placed on Behiri Lal v. Ram Chindra AIR 1942 Oudh 335, (F); Neogi Ghose & Co. v. Nehal Singh AIR 1931 Cal 770(G).

6. It is difficult to reconcile the authorities which have been cited, but the broad principle which can be found from these authorities is that if the case is only of misdescription, then the correction of the names of parties would not entail the application of Section 22 of the Limitation Act; but if it was a case of bringing on record a new party, then Section 22 comes into play, and the limitation is to be reckoned from the date when the new party is added. In the present case, the dealings were between the firm Hiralal Hazarilal, and the firm Lalliram Jagannath according to the entries in the account books of the plaintiff and the correspondence that has taken place with respect to the transactions which are the subject-matter of the suit. There is also no dispute on the fact that the. firm of Hiralal Hazarilal had at least two partners Hazarilal Sunderlal. The defendant's transactions were with the firm 'Hiralal Hazarilal. A firm has no legal entity beyond its partners, and while Order 30, C. P C. permits a suit to be filed on behalf of all the partners in the name of the firm, the partners of the firm are the persons who are really entitled to a relief or liable on the claim. The various transactions mentioned in the plaint were, therefore between the defendant Jagannath on the one hand and all the partners who constituted the firm of Hiralal Hazarilal on the other. Of those partners Hazarilal alone instituted the suit on the allegation that he alone was the proprietor of the firm Hiralal Hazarilal The delendant took objection, and very rightly, that one alone of several joint contractors was not entitled to enforce his claim. One obvious course for the plaintiff Hazarilal would have been to make Sunderlal a plaintiff. He, however, made an application that the plaint may be allowed to be amended by making the firm Hiralal Hazarilal as plaintiff. The result of making the firm a plaintiff was that ail the partners, who constituted the partnership, became plaintiff. Since Order 30 allows several partners of a firm to sue in; the name of the firm, the plaintiff, therefore, by praying for the amendment of the plaint so as to make the firm Hiralal Hazarilal as plaintiff only did what could be done by adding Sunderlal as a party. The net re-ult was that ot the several contractors one came to court to enforce his claim within limitation, while the second co-contractor was made a party plaintiff after the limitation for the suit had expired. The claim by Sunderlal could not be enforced owing to the law of Limitation, and the other partner Hazarilal could not enforce his claim because of Section 45 of the Contract Act. A case very near to the facts of the present ease is to be found in Ramsebuk v. Ramlall Koondoo 1LR 6 Cal 815 (H). As observed in that case

'the provisions of Section 22 of the Limitation Act seem to have been passed with the avowed object of preventing such amendments being made in such a way as to relieve the plaintiffs from limitation and the effect of those provisions in such a case as the present is to render the amendment virtually useless to the original plaintiffs. If those plaintifis cannot enforce their claim without joining the additional plaintiffs, and the additional plaintiffs are barred from enforcing it by the law of limitation, it is obvious that the suit must fail.'

7. There is, therefore, no force in this appeal, and it is accordingly dismissed with costs.


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