1. S.A. No. 568 of 1922. The only point argued in this second appeal is that the lower Courts erred in not granting relief to the plaintiff to amend his plaint by substituting the name of Venkatasubba Reddy in the place of Venkatasubbamma.
2. The District Munsif refused to allow the amendment and dismissed the plaintiff's suit. The District Judge on appeal held that the District Munsif was right in not granting the amendment asked for. Mr. V.C. Seshachariar on behalf of the appellant urges that the amendment was necessitated by a new plea taken by the defendant at a late stage of the case. The suit was filed in 1919. The plaint was filed on 14th July, 1919. The first defendant's written statement was put in on 15th September, 1919. Issues were framed on 16th September, 1919. On behalf of the plaintiff, the Will of her father was filed in Court On looking into it the defendants raised the contention that the suit by the present plaintiff was not sustainable inasmuch as Venkatasubba Reddy was the executor of the Will and that, therefore, the executor was the only person competent to sue in respect of the defendant's debts due to the estate of the plaintiff's father. On this objection being raised an additional issue was framed. Issue No. 3, 'Whether the plaintiff has title to sue for these debts and is this suit at her instance maintainable?'
3. The District Munsif held that the suit was not maintainable by the plaintiff inasmuch as there was a Will of her father under the Will Venkatasubba Reddy was appointed executor. Thereupon the plaintiff applied for leave to amend the plaint by substituting Venkatasubba Reddy as the plaintiff in the place of the plaintiff on record. The District Munsif after consideration of the matter held that he could not add a hew person as plaintiff as the claim against defendants had been barred before the time and he held that he could not allow an amendment in the circumstances of the case. Against this decree the plaintiff appealed and the District Judge, as I have already observed, dismissed the appeal.
4. It is contended by Mr. Seshachariar that inasmuch as the application for amendment was necessitated by an additional issue at that stage of the case, the District Munsif ought to have allowed the amendment of the plaint before proceeding with the suit. No doubt if the bar of limitation was not in the way, the Court would have been well advised in granting the plaintiff's request. But under Section 22 of the Limitation Act, if a new plaintiff is added, the suit as regards him, shall be deemed to have been instituted when he is so made a party. Allowing the application of the plaintiff to bring Venkatasubba Reddy as the plaintiff on record would not improve matters as limitation would be calculated from the date when the cause of action arose and a suit will be considered to have been instituted when he is so made a party. The Munsif rightly held that in the circumstances he could not grant the application of the plaintiff. Mr. Seshachariar strongly urges that this is an unrighteous plea on the part of the defendants and that such a plea ought not to be upheld. But that is not a matter which can be considered now. It is unnecessary to refer to all the cases quoted by both the learned Vakils. It is sufficient for me to refer to the judgment of the learned Chief Justice and Mr. Justice Ramesam reported as Seerangathanni v. Vaithilinga Mudaliar A.I.R. 1921 Mad. 528. They distinctly held that if a now plaintiff was added as a party or in other, words if a party is added to a pending suit after the lapse of the period of limitation fixed for the suit the bar of limitation would not be saved. Mr. Seshachariar relied upon a case in Muthukrishna Pillai v. Rajam Aiyengar (1915) 30 M.L.J. 57 as supporting his contention. In that case there was no new party added as plaintiff but the plaintiff on record who sued in his own individual capacity consented to represent a company. The cause of action was the same and the plaintiff was-allowed to sue as representative of the company instead of representing only himself. In this case, it cannot be said that the plaintiff on record is the same as the person who wants to come on record. Now the plaintiff on record is the minor daughter of the deceased Butchi Reddi. Her claim was that she was entitled to her father's estate as daughter but the person who wants to come on record is the executor appointed under the will of Butohi Reddi. His right is entirely different from that of Butohi Reddi's daughter. He does not claim the properties as his but as an executor. The cause of action being different, could Venkatasubba Reddy by any stretch of imagination be said to represent the interest of the present plaintiff? The facts in Sevugan Chetty v. Krishna Ayyangar (1913) 36 Mad. 378 are distinguishable from the facts of the present case. If the Court allows a new plaintiff to put forward new facts on which to rest his case, an amendment under such circumstances would go against the provisions of Section 22 of the Limitation Act. Where the plaintiff on record is allowed to set up new facts or put forward a new cause of action that would not be tantamount to adding a new plaintiff. But here a new plaintiff is sought to be added and Section 22 of the Limitation Act is against such a course.
5. Then it is suggested that the plaintiff is a minor girl and so her guardian or next friend filed a suit on her behalf and, therefore she should not be allowed to suffer on account of the faults or ignorance of her next friend. It is difficult to follow the argument for the next friend himself obtained a succession certificate a year before the suit (i.e.), in 1918. He must have known that he was the person who was entitled to sue to recover outstandings belonging to the estate. It is not easy to believe that he was either ignorant or he was misled by his legal advisers.
6. Both the Courts have found that his action was not bona fide and that being a question of fact, I am bound by the finding.
7. In these circumstances, I do not think the lower Courts are wrong in refusing the application for amendment of the plaint.
8. In the result, the appeal is dismissed with costs.
9. Civil Revision Petition No. 510 of 1922.
10. In this civil revision petition an application similar to that made in the second appeal which I have just disposed of was made for an amendment of the plaint. The District Munsif refused amendment and on appeal the District Judge held that there was no reason to interfere with the order of the District Munsif. As I have already held that the lower Courts were right in the view they have taken of the plaintiff's application, this civil revision petition fails and is dismissed with costs.