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Narayan Chandra Das Vs. Dulal Chandra Dutta - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1927Cal477
AppellantNarayan Chandra Das
RespondentDulal Chandra Dutta
Cases ReferredPeary Mohan Muherji v. Norendra Nath Mukerji
Excerpt:
- .....with regard to the question of limitation, it has been argued that as the amendment making dulal a party plaintiff to the suit the suit was made beyond three years of the institution of the suit for accounts and for the winding up of the partnership is barred under article 106 of the limitation act. we do not think that there is any force in this contention. section 22 of the indian limitation act which was invoked in the course of argument has no application to a case of this kind. for it cannot be said that when the proper amendment was made, dulal was introduced as a new party to the suit. he was already there on the record when the plaint was filed; and consequently the amendment describing him properly at a later stage did not amount to the addition of a new party within the.....
Judgment:

Mitter, J.

1. This appeal is on behalf of the defendant and arises out of a suit for the winding up of a partnership business and for accounts. The suit was instituted by Srimati Promoda Sundari Dasi as the next friend of the infant, Dulal Chandra Dutt. One of the objections that was taken by the defendant is that the suit was not maintainable by Promoda Sundari. It transpires in the evidence that at the date of the institution of the suit, the infant Dulal had attained majority and that the suit could not proceed in the form in which it had been laid. I shall state here that this objection was not specifically taken in the written statement. But an issue was raised and the matter was discussed before the Court of first instance, who gave effect to this plea taken by the defendant, and dismissed the plaintiff's suit. On appeal by the plaintiff to the lower appellate Court, that decision was reversed and the plaintiff obtained a partial decree in the suit. Against that decision this appeal has been preferred to this Court and in this second appeal two contentions have been raised before us.

2. The first ground taken is that the son Dulal, not being a party in the original suit the lower Court should not have allowed an amendment in the appellate stage without any application being made by any of the parties before it.

3. The second ground raised is that the suit is barred by limitation.

4. It may also be stated here that Dulal was an appellant before the lower appellate Court.

5. Now, with regard to the first point as to the power of the lower appellate Court to allow the amendment, we are of opinion that the lower appellate Court possesses that power and had rightly exercised it. Under the Code of 1908, the powers given for amendment are very wide and liberal and no amendment is refused at any stage of the suit, subject only to this : that it does not change the character of the suit. No such change is suggested in the present case.

6. With regard to the contention that the suit was not maintainable and that Promoda could not represent Dulal as Dulal had at the institution of the suit attained majority, we are of opinion that there is no force in that contention, for it appears that it was through a bona fide belief that Dulal was described as a minor and was represented by his mother as the next friend. The suit was instituted by the right person but through another person purporting to act as his next friend. In these circumstances we think that the suit was maintainable.

7. With regard to the question of limitation, it has been argued that as the amendment making Dulal a party plaintiff to the suit the suit was made beyond three years of the institution of the suit for accounts and for the winding up of the partnership is barred under Article 106 of the Limitation Act. We do not think that there is any force in this contention. Section 22 of the Indian Limitation Act which was invoked in the course of argument has no application to a case of this kind. For it cannot be said that when the proper amendment was made, Dulal was introduced as a new party to the suit. He was already there on the record when the plaint was filed; and consequently the amendment describing him properly at a later stage did not amount to the addition of a new party within the meaning of Section 22 of the Limitation Act; and if any authority for this proposition is needed, reference may be made to a somewhat analogous case decided by the Judicial Committee of the Privy Council and reported as Peary Mohan Muherji v. Norendra Nath Mukerji [1909] 37 Cal. 229.

8. In this view, the second ground of limitation also fails and the appeal must be dismissed with costs.

Duval, J.

9. I agree.


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