Skip to content


Jogendra NaraIn Roy Choudhury Vs. P.J. Forbes - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in32Ind.Cas.872
AppellantJogendra NaraIn Roy Choudhury
RespondentP.J. Forbes
Excerpt:
limitation act (ix of 1908), section 22 - suit against wrong defendant--right person made defendant after period of limitation, effect of--clerical mistake--misdescription of defendant--amendment. - .....was instituted on the 2nd january 1912. the suit was for the correction of a certain entry in the record of rights which was finally published on the 27th december 1905. in the plaint, the defendant was described as mr. p.j. forbes pisar la maloom, which means son of some unknown person. on the 20th april 1912, a petition was put in by the plaintiff alleging that the defendant had been misdescribed in the plaint and that the defendant was really a lady named miss p.j. forbes. it appears that on this application having been filed, miss p.j. forbes was made a defendant. she was summoned, put in appearance, filed a written statement and contested the suit.2. both the courts below have dismissed the plaintiff's suit on the ground of limitation and have held that inasmuch as miss p.j. forbes.....
Judgment:

1. This is a second appeal on behalf of the plaintiff of the suit which was instituted on the 2nd January 1912. The suit was for the correction of a certain entry in the Record of Rights which was finally published on the 27th December 1905. In the plaint, the defendant was described as Mr. P.J. Forbes pisar la maloom, which means son of some unknown person. On the 20th April 1912, a petition was put in by the plaintiff alleging that the defendant had been misdescribed in the plaint and that the defendant was really a lady named Miss P.J. Forbes. It appears that on this application having been filed, Miss P.J. Forbes was made a defendant. She was summoned, put in appearance, filed a written statement and contested the suit.

2. Both the Courts below have dismissed the plaintiff's suit on the ground of limitation and have held that inasmuch as Miss P.J. Forbes was made a defendant sometime after the period of limitation, the suit against her must fail. The plaintiff appeals to this Court.

3. The only ground taken is that it is evident from a perusal of the plaint and the written statement that as a matter of fact the party that was meant to be the defendant in the suit was the person whose name had been recorded in the Record of Rights as mokararidar of the land in dispute and that it was for the correction of the word 'mokararidar' into 'malguzar istamrari' that the suit was brought.

4. On behalf of the respondent, it is urged that it was at the discretion of the Court to accept the petition for amendment or not, and that in fact to order was made either on the petition or in the order sheet of the 20th April 1912.

5. We have referred to the order sheet and we find that as a matter of fact there is no such order or any mention of the fact that a petition for amendment was put in. It appears, however, from the judgment of the first Court that there was an application made for amendment on the 20th April 912 and that Miss P.J. Forbes was made a defendant.

6. The learned Pleader who appeared for Miss P.J. Forbes contended that as the petition for amendment was made on the 20th April 1912, that is to say, sometime after the period of limitation, the suit against the defendant, Miss P.J. Forbes, must fail.

7. The question, therefore, is whether in the circumstances the suit is barred by six years' limitation.

8. Now, when Miss P.J. Forbes was made a defendant, the lower Court in the exercise of its discretion granted the application, otherwise there is no reason why she should have been allowed to put in a written statement and contest the suit. From this it is clear that the fact of her being made a defendant was the result of the application for amendment that was put in on the 20th April 1912. The suit was the same, only with this difference that the plaintiff prayed that the defendant should be described as Miss and not Mr. P.J. Forbes. This kind of mistake creeps into records in consequence of abbreviations frequently used in Hindi, for instance, 'Mi' is used for both Mr. and Miss. The Record of Rights is not before us; but we think that it would have been very difficult for the plaintiff to find out whether the name mentioned in the Record of Rights was that of a male or of a female. But on finding afterwards that it was the latter, he came to Court and asked to have the mistake corrected. We are of opinion that this is but a clerical mistake and a case merely of misdescription.

9. That being our view, we set aside the judgments of the lower Courts and remand the case to the lower Appellate Court in order that it may decide the case on the merits; if necessary, that Court may send it to the first Court for the same purpose.

10. Costs will abide the result.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //