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Nistarini Dassya and ors. Vs. Sarat Chandra Mojumdar - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in29Ind.Cas.680
AppellantNistarini Dassya and ors.
RespondentSarat Chandra Mojumdar
Cases Referred and Hari Saran Moitra v. Bhubanesivari Debi
Excerpt:
civil procedure code (act v of 1908), order i, rule 10 (i) - suit by mother as administratrix--subsequent addition of sons as plaintiffs--suit, whether barred--limitation act (ix of 1908), section 12--bona fide mistake, meaning of. - .....that her pleader had discovered that her powers as administratrix had come to an end before the suit was instituted. it appeared that under the letters of administration her appointment as administratrix was to terminate when the eldest son of gopal chandra de attained majority and this had occurred some years prior to the institution of the suit. she prayed that the three sons of gopal chandra de who were his heirs should be added as plaintiffs. the munsif made the order prayed for. it will be observed that the three sons wore added as plaintiffs some months after the period of limitation hail expired.3. the order of the munsif was made under clause (1), rule 10, order i, of the first schedule to the code of civil procedure. the munsif held in the terms of the claus that the suit had.....
Judgment:

1. This appeal arises out of a suit upon a registored mortgage bond. The Munsif decreed the suit. In the Court of first appeal the suit has been dismissed on the ground of limitation. The plaintiffs appeal now to this Court.

2. The bond was executed in October 1895, the due date being April 1900. It was executed in favour of one Gopal Chandra De. The suit was brought on the 29th April 1911, shortly before the expiry of 12 years after the due date by the widow of Gopal Chandra De, who had been appointed administratrix to his estate. On the 30th November 1911, the widow presented a petition supported by an affidavit stating that her Pleader had discovered that her powers as administratrix had come to an end before the suit was instituted. It appeared that under the Letters of Administration her appointment as administratrix was to terminate when the eldest son of Gopal Chandra De attained majority and this had occurred some years prior to the institution of the suit. She prayed that the three sons of Gopal Chandra De who were his heirs should be added as plaintiffs. The Munsif made the order prayed for. It will be observed that the three sons wore added as plaintiffs some months after the period of limitation hail expired.

3. The order of the Munsif was made under Clause (1), Rule 10, Order I, of the first Schedule to the Code of Civil Procedure. The Munsif held in the terms of the claus that the suit had been instituted through a bona fide mistake in the name of the wrong person as plaintiff and accordingly ordered that the right persons, namely, the three sons, be added as plaintiffs. He held the suit was not barred by limitation and decreed it on the merits.

4. The learned Subordinate Judge has held in first appeal that the mistake was not bona fide. In his opinion bona fide means with due care and attention and he held that with the least care and attention, the plaintiff could well understand that her powers had come to an end. He inferred that the suit must be taken to have been instituted when the three sons came in as plaintiffs. This was after the period of limitation. He accordingly dismissed the suit without going into the merits.

5. We are of opinion that the Court of first appeal erred in the interpretation of the word bona fide. Where a mistake is not made deliberately and where it is honestly made the mistake is bona fide. The widow was illiterate and pardanashin. The eldest son was 26 when the suit was brought, but it is clear from his deposition that he is not very intelligent. He says that for the last five or seven years, he looks after his suits and collection of rent, but it is riot said, in whose name these suits to which he refers were instituted. The management was really done, it seems, by agents. No dishonest motive can be suggested : the mistake was brought to notice by the widow herself. We hold that the mistake was bona fide and that the order adding the three sons as plaintiff's was properly made under Clause 1, Rule 10, Order I.

6. It is then contended that the provisions of Section 22, Indian Limitation Act, apply, which are to the effect that where after the institution of a suit a new plaintiff or defendant is substituted or added the suit shall, as regards him, ibe-deemed to have been instituted when he was made a party.

7. The contention is that even though it be held that the three sons were properly added as plaintiffs yet, inasmuch as this was done after the period of limitation had expired, the suit must under the provisions above referred to be held to be barred.

8. In the present case, however, when the suit was originally instituted within the period of limitation it was instituted by the widow not for lier own benefit, but as administratrix for the benefit of the three sons. They were the real persons throughout who were to benefit. The change that was made after the period of limitation was one of form only, not of substance.

9. In the case of Subodini Debi v. Gumar Ganoda Kant Hoy 14 C. 400 it was held that where a suit was originally instituted in the name of a manager and the names of the employers were subsequently substituted as plaintiffs after the period of limitation, the suit was not barred. It is true that the decision rests partly on a consideration of the wording of the Code as it then stood. The learned Judges say, 'the answer is that this suit is the original suit and was brought in time'. This is a general observation, the principle of which is applicable to the present case.

10. In the case of Manni Kasundhan v. Croolce 2 A. 296 where a suit was brought originally against a Municipal Committee represented by the Secretary, instead of by their President, as it should have been, and where the plaintiff applied after the expiry of the period of limitation for substituting the name of the President for that of the Secretary, it was held that by reason of such substitution the suit could not be deemed to have been instituted against the Municipal Committee when such substitution was made. The judgment was referred to in the case of Raja Peary Mohan Mookerjee v. Narondra Nath Mookerjee 9 C.W.N. 421 : 32 C. 582 in which the learned Judges stated the rule to be that where relief is originally claimed against a party who has to be represented by some person, the proper representation of that party subsequently made has not the effect of adding a new defendant ' to the suit. We are of opinion that a similar principle is applicable to a case such as the present where by a bona fid-i mistake it is erroneously supposed that a plaintiff should be represented in a particular way and subsequently the plaintiff is permitted to rectify the mistake and appear personally, this is not the addition of a new plaintiff within the meaning of Section 22 of the Limitation Act.

11. That in matters of this kind the substance is to be looked to rather than the form will be apparent from the judgments of the Privy Council in the cases of Dhurm Das Pandey v. Shama Soondri Dibiah 3 M.I.A. 229 : 6 W.R. (P.C.) 43 : 1 Suth. P.C.J. 147 : 1 Sar. P.C.J. 27 : 18 E.R. 484 and Hari Saran Moitra v. Bhubanesivari Debi 16 C. 40 (P.C.) : 15 I.A. 195 : 12 Ind. Jur. 373 : 5 Sar. P.C.J. 198. In both these cases a minor was treated as if he had been a party to the litigation, although in fact he never had been made a party and the litigation had been prosecuted by his mother in her personal capacity. 'The suit must' their Lordships say in the first case, 'be considered to have been prosecuted by her in her name for the minor's benefit'. So, in the present case, the suit must be considered to have been originally instituted by the widow for the benefit of her sons and there was thus no introduction of new plaintiffs when the sons were brought on to the record.

12. We hold that the suit was not barred by limitation. We set aside the judgment and decree of the learned Subordinate Judge and remand the case for disposal on the merits. Costs to abide the result.


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