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A.V. Subramaniam, by Partner A.V. Subramania Mudaliar Vs. Ramachandra Beharilal, Through Its Proprietor Beharilal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1956)2MLJ64
AppellantA.V. Subramaniam, by Partner A.V. Subramania Mudaliar
RespondentRamachandra Beharilal, Through Its Proprietor Beharilal
Cases ReferredMura Mohideen v. Mahomed
Excerpt:
- - they clearly show that the present defendant had full knowledge of the institution of the suit and the date of its hearing by reason of the lawyer's notice, exhibit a-2 and that under orders of court notice of summons had been forwarded to him by registered post which he had refused and it was in these circumstances that he was declared ex parte and a decree passed against him. i am clearly of the opinion that it does not. to overcome this very technical point the plaintiffs applied to the english courts for leave to amend the cause title by describing the defendant as josef bartels trading as bernhard bartels. but here though the defendant had notice of the action and of the date of the hearing chose to remain absent for reasons best known to himself......galled absent. set ex parte. p.w. 1 examined. exhibit a-1 and exhibit a-a marked. claim proved. suit decreed with costs. 16th february, 1949.after getting this decree the plaintiff had the decree transferred to the court at aligarh for execution and there ramachandra bihari lal took an objection that his description in the cause title was misleading and that the decree could not be executed without the amendment of the cause title. the difference between the description of the defendant as shown in the original cause title and that to which he seeks to amend may be stated briefly in these terms. originally the plaintiff was under the impression that ramachandra bihari lal was an individual trading in his own name. the defendant however has put forward the objection that he is bihari.....
Judgment:

Rajagopala Ayyangar, J.

1. The plaintiff is the petitioner in this revision. He filed an application J.A. No. 1958 of 1951 under Order 6, Rule 17 and Section 151, Civil Procedure Code, for the amendment of the cause title in the plaint and the judgment and decree in respect of O.S. No. 417 of 1948 on the file of the District Munsif's Court of Erode which he brought for the recovery of Rs. 2861-2-0 and in which he obtained a decree. But the application has been dismissed and the revision is against this order.

2. The facts necessary to understand the points lie in a very brief compass. The plaintiff is a firm carrying on business under the name and style of A.V. Subramaniam. This firm had certain transactions in turmeric with a person carrying on business under the name and style of 'Ramachandra Behari Lal' at Aligarh. There were notices which preceded the suit and as the person trading in the name of Ramachandra Behari Lal did not comply with the demands of the plaintiff, O.S. No. 417 of 1948 was filed on 27th July, 1948, against 'Ramachandra Behari Lal' who was described in the plaint as 'Ramachandra Behari Lal, father's name not known, carrying on business at Aligarh'. Several notices were taken out through Court to the defendant and all of them were returned unserved with the endorsement that there was no person of that name at Aligarh. Finally the learned District Munsif directed fresh service and notice by registered post by an order, dated 15th November, 1948. Such a notice was despatched by the plaintiff and evidently it was returned with the endorsement 'refused'. I am saying 'evidently' advisedly because though the entire records of the suit in the Court of the District Munsif have been called for, the refused registered cover is not among them. But there is a note in the judge's notes paper reading thus : 'Registered post to the defendant Refused'. After this the case came on for disposal on 16th February, 1949 and on that date the note made by the District Munsif runs thus:

Service to the defendant returned. Galled absent. Set ex parte. P.W. 1 examined. Exhibit A-1 and Exhibit A-a marked. Claim proved. Suit decreed with costs. 16th February, 1949.

After getting this decree the plaintiff had the decree transferred to the Court at Aligarh for execution and there Ramachandra Bihari Lal took an objection that his description in the cause title was misleading and that the decree could not be executed without the amendment of the cause title. The difference between the description of the defendant as shown in the original cause title and that to which he seeks to amend may be stated briefly in these terms. Originally the plaintiff was under the impression that Ramachandra Bihari Lal was an individual trading in his own name. The defendant however has put forward the objection that he is Bihari Lal, son of Ramachandra and therefore Ramachandra Bihari Lal is not a person who is trading under the name of Ramachandra Bihari Lal. In the counter-affidavit which has been filed to this application for amendment the defendant does not dispute that it was he that had dealings with the plaintiff in turmeric which led to the suit claim. This is indeed proved by Exhibits A-1 and A-2 which preceded the filing of the suit. In Exhibit A-1 which is a notice issued on behalf of Ramachandra Bihari Lal by his lawyer the defendant is described as 'Messrs. Ramachandra Bihari Lal, Aligarh.' It alleged that the plaintiff had broken the contract and threatened him with a suit for damages for breach. The reply of the plaintiff is Exhibit A-2 and that is addressed to the lawyer on behalf of the latter's client 'Messrs. Ramachandra Behari Lal of Aligarh'. It may be mentioned that in this notice whose receipt is not denied in the affidavit filed in the present application the plaintiff intimated to the defendant that he had filed a suit O.S. No. 417 of 1948 in the District Munsif's Court of Erode and informed him that the suit was posted for hearing on 16th February, 1949. This letter was dated 10th January, 1949. Obviously this gave the defendant sufficient time to appear in Court and defend the action, if he was so minded. It is in these circumstances that the present application came to be made.

3. In the counter-affidavit filed by the respondent there are two principal grounds which are mentioned as precluding the relief claimed by the applicant, viz., (1) that the decree was obtained ex parte without proper service on the defendant and on improper and illegal grounds and (2) that as Ramachandra Bihari Lal was the name of his father who had died nearly 20 years ago the suit must be deemed to be one against a dead person and not against the defendant and therefore the decree must be deemed to be a nullity and not capable of being amended and that the amendment of such a decree would amount to passing a decree against one who had not been heard and who had no opportunity of defending the suit.

4. The Judgment of the learned District Munsif is not very helpful in construing either the facts or the legal propositions involved in this application for amendment Learned Counsel for the respondent frankly conceded that he could not support the reasoning in this judgment but would seek to support the order by arguments which he would address to this Court. As the defendant was declared ex parte and as I was impressed with the fact that if really the defendant had not been served by reason of any mistake on the part of the plaintiff in the description of the defendant in the cause title, the latter should not suffer by having a decree passed against him without being heard and without an opportunity of contesting it on merits. I had the papers called for from the District Munsif 's Court of Erode for the purpose of judging the justness of this grievance. I have set out earlier the result of these records. They clearly show that the present defendant had full knowledge of the institution of the suit and the date of its hearing by reason of the lawyer's notice, Exhibit A-2 and that under orders of Court notice of summons had been forwarded to him by registered post which he had refused and it was in these circumstances that he was declared ex parte and a decree passed against him. I do not, therefore, consider that there is any justification for any grievance or complaint that any inaccuracy in the description of the defendant had prejudiced him to any extent.

5. We therefore start with this basis that it was Bihari Lal, son of Ramachandra, who had transactions which gave rise to the suit, with the plaintiff and that he was the individual with whom notices Exhibits A-1 and A-2 were exchanged. Lastly, it was this identical individual who was intended to be sued in O.S. No. 417 of 1948. If so much is conceded or has to be conceded, the only question is whether the fact that the name of the defendant is Bihari Lal, son of Ramachandra or in ordinary parlance Ramachandra Bihari Lal and he was described as a person whose father's name was unknown and whether the fact that the name of the defendant's father was itself Ramachandra Bihari Lal make any difference to the legality and validity of the decree passed by the Court? The argument advanced on behalf of the respondent that when the plaintiff described the defendant as Ramachandra Bihari Lal he must have meant the father of the respondent is obviously untenable. This individual had died years back and though the son who bore the same name continued the trade in the name of the father, it was the son, the present respondent, that had dealings with the plaintiff and it was that person who alone was intended to be sued. Does it then make any difference if the cause title to the plaint did not say that the respondent was carrying on business in the name of Ramachandra Bihari Lal? I am clearly of the opinion that it does not. There is here no suit against a dead person as is argued for the respondent for Ramachandra Bihari Lal who was named as the defendant was not the father but the son with whom alone the plaintiff had dealings. Trade names are not traps for the unwary and no person can obtain any advantage when sued in such trade name or in the name in which he had dealings which give rise to the suit by saying that such a name was actually borne by a dead person and that therefore the suit and the decree are nullities.

6. In my opinion the question raised in the present case is concluded by the judgment of this Court in Mura Mohideen v. Mahomed (1955) 1 M.L.J. 337. I was the member of the Bench and in the course of the judgment stated:

If however imperfectly and incorrectly a party is designated in a plaint the correction of the error is not the addition or substitution of a party but merely clarifies and makes apparent what was previously shrouded in obscurity by reason of the error or mistake. The question in such a case is one of intention of the party and if the Court is able to discover the person or persons intended to sue or to be sued a mere mis-description of such a party can always be corrected provided the mistake was bona fide.

7. In that case the Court had to consider the correctness of an amendment which substituted the names of the individuals constituting the firm for the name of a firm carrying on business outside India. Possibly the decision of the Court of Appeal affirming the order of Slade, J., in chambers in Pearlman (Veneers) Ltd., Bartels, In re (1954) 3 All. E.R. 659, is even more apposite to the present case. The plaintiffs Pearlman (Veneers), Ltd. entered into contracts with a concern carrying on business at Langenberg, in Germany which was described on its notepaper by the defendant as 'Bernhard Bartels'. The defendant had broken the contract and the plaintiffs filed a suit in England and obtained a decree for a considerable amount. It may be mentioned that the defendant entered appearance and defended the action and it was after repelling the defence that a decree was passed. Subsequently, the plaintiffs sought to enforce that judgment in the German Courts. Before those Courts the defendant raised a plea that his true name was Josef Bartels and that there was no such person as Bernhard Bartels though it was admitted that it was the name under which he traded. In the English action the defendant was described as Bernhard Bartels and not Josef Bartels carrying on business in the name and style of Bernhard Bartels. The plea on that account was that the decree had been obtained against an assumed natural person who did not exist. To overcome this very technical point the plaintiffs applied to the English Courts for leave to amend the cause title by describing the defendant as Josef Bartels trading as Bernhard Bartels. The Master and the Judge in Chambers, Slade, J., made the necessary amendments and the defendant filed an appeal to the Court of Appeal contending that the Court had no jurisdiction to amend the judgment once it had been entered. Denning, L.J., said:

When the substantive judgment is not being altered, but only the title of the action, it is to my mind quite plain that this Court has ample jurisdiction to correct any misnomer or mis-description at any time whether before or after judgment.... All that is necessary to be done, which this Court has ample power to do, is to alter the title by describing the defendant in the name he now says is his correct name, Josef Bartels, but adding, so that there shall be no possibility of misunderstanding, 'trading as Bernhard Bartels.'

8. Hodson, L.J., who agreed doubted whether it was necessary to amend and whether even without an amendment the plaintiffs could not still execute the decree in the German Courts. This case is to my mind very near to the present case and the only point of difference is that in the case before the Court of Appeal the defendant appeared at the trial, engaged solicitors and defended the action. But here though the defendant had notice of the action and of the date of the hearing chose to remain absent for reasons best known to himself. In my judgment it makes no difference. The crucial test as I have said before is, whom did the plaintiff intend to sue. It was the person with whom he had the dealings. The fact that the name in which the defendant did business was a trade name and happened to be the name of some one who died long ago does not alter the identity of the person who either had dealings, with the plaintiff or whom the plaintiff intended to sue. There being no doubt about these matters the plaintiff's application for amendment ought to have been allowed.

9. The revision petition succeeds and there will be an order to amend the pleadings, the judgment and decree as prayed for in I.A. No. 1958 of 1951 in O.S. No. 417 of 1948. The petitioner will be entitled to costs of the revision.


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