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1956 DIGILAW 291 (RAJ)

Firm, Seth Hiralal Hazarlial of Baran v. Jagannath

1956-12-07

BAPNA

body1956
Bapna, J.—This is an appeal against the judgment of the learned District Judge, Baran, dated 14.12.49, by the plaintiff in a suit for recovery of money. 2. The suit was originally instituted by Hazarilal describing himself as the son of Hiralal, proprietor of the firm of Seth Hiralal Hazarilal. The defendant Jagannath was described as son of Lalliram, owner of Lalliram Jagannath at Tekneri Pachar, Madhya Pradesh. The suit was for recovery of Rs. 3,703/-/3. It was instituted on 23rd October, 1948, in the court of Civil Judge, Baran, and the cause of action for purposes of limitation was stated to have arisen on the 15th of November, 1945 The defendant took a preliminary objection that the plaintiff was not the sole owner of the firm Hiralal Hazarilal, but one Sunderlal was also a partner, and that as the suit was not in the name of the firm the suit was bad for non-joinder. The plaintiff filed an application on 16th February, 1949, praying for amendment of the plaint so as to make the firm Hiralal Harazilal as the plaintiff. In this application it was mentioned that Sunderlal was not made a party, because he had not contributed towards the capital of the firm. It seems to have been impliedly admitted that Sunderlal was a partner in the firm, and this conclusion is confirmed by the fact that the second appeal was filed on behalf of the firm Hiralal Hazarilal through both Seth Hazarilal and Sunder. The amendment was allowed by the trial court on 19th March, 1949. The defendant raised a plea of limitation on the ground that when the proper party, viz,, firm Hiralal Hazarilal, was brought on record on 19th March, 1949, the suit had become barred by limitation. A preliminary issue on limitation was framed and decided against the plaintiff, and the suit was dismissed by the Civil Judge, Baran, on 24th August, 1949. The plaintiff filed an appeal, but without success. Hence this second appeal. 3. It is not disputed that the claim would become barred by time if it be considered that the suit was instituted by the proper party on 19th March, 1949, or for that matter on 16th February, 1949,when the application was made for amendment of the plaint. 4. The plaintiff filed an appeal, but without success. Hence this second appeal. 3. It is not disputed that the claim would become barred by time if it be considered that the suit was instituted by the proper party on 19th March, 1949, or for that matter on 16th February, 1949,when the application was made for amendment of the plaint. 4. Learned counsel for the appellant contended that the case was one only of misdescription, which could be corrected at any time after the institution of the suit, and the provisions of sec. 22 of the Limitation Act had no application in that case. Learned counsel relied on Motilal Jasraj vs. Chandmal Hindumal (1), Ramprasad Shivlal vs. Shrinivas Balmukund (2), Prabhu Dayal vs. Firm Prabhulal Chandmal (3), Deolal vs. Tularam Ramsukh (4), Anukul Chandra Chakarvarti vs. Chairman of the Dacca District Board (5). 5. On behalf of the respondent it was urged that the case was not one of misdescription, but was of adding new parties, and reliance was placed on Beharilal vs. Pt. Ramchandra Sharma (6) and Neogi Ghose & Co. vs. Sardar Nehal Singh (7). 6. It is difficult to reconcile the authorities which have been cited, but the broad principle which can be found from these authorities is that if the case is only of misdescription, then the correction of parties would not entail the application of sec. 22 of the Limitation Act; but if it was a case of bringing on record a new party, then sec. 22 comes into play, and the limitation is to be reckoned from the date when the new party is added. In the present case, the dealings were between the firm Hiralal Hazarilal, and the firm Lalliram Jagannath according to the entries in the account-books of the plaintiff and the correspondence that has taken place with respect to the transactions which are the subject-matter of the suit. There is also no dispute on the fact that the firm of Hiralal Hazarilal had at least two partners, Hazarilal and Sunderlal. The defendants transactions were with the firm Hiralal Hazarilal. A firm has no legal entity beyond its partners, and while O. XXX, C.P.C. permits a suit to be filed on behalf of all the partners in the name of the firm, the partners of the firm are the persons who are really entitled to a relief or liable on the claim. A firm has no legal entity beyond its partners, and while O. XXX, C.P.C. permits a suit to be filed on behalf of all the partners in the name of the firm, the partners of the firm are the persons who are really entitled to a relief or liable on the claim. The various transactions mentioned in the plain were, therefore, between the defendant Jagannath on one hand and all the partners who constituted the firm of Hiralal Hazarilal on the other. Of those partners Hazarilal alone instituted the suit on the allegation that he alone was the proprietor of the firm Hiralal Hazarilal. The defendant took objection, and very rightly, that one alone of several joint contractors was not entitled to enforce his claim. One obvious course for the plaintiff Hazarilal would have been to make Sunderlal a plaintiff. He, however, made an application that the plaint may be allowed to be amended by making the firm Hiralal Hazarilal as plaintiff. The result of making the firm a plaintiff was that all the partners, who constituted the partnership, became plaintiff. Since O. XXX, allows several partners of a firm to sue in the name of the firm, the plaintiff, therefore, by praying for the amendment of the plaint so as to make the firm Hiralal Hazarilal as plaintiff only did what could be done by adding Sunderlal as a party. The net result was that of the several contractors one came to court to enforce his claim within limitation, while the second co-contractor was made a party plaintiff after the limitation for the suit had expired. The claim by Sunderlal could not be enforced owing to the law of limitation, and the other partner Hazarilal could not enforce his claim because of sec. 45 of the Contract Act. A case very near to the facts of the present case is to be found in Ramesbuk vs. Ramlall Koondoo (8). As observed in that case, "the provisions of sec. 22 of the Limitation Act seem to have been passed with the avowed object of preventing such amendments being made in such a way as to relieve the plaintiffs from limitation ; and the effect of those provisions in such a case as the present is to render the amendment virtually useless to the original plaintiffs. 22 of the Limitation Act seem to have been passed with the avowed object of preventing such amendments being made in such a way as to relieve the plaintiffs from limitation ; and the effect of those provisions in such a case as the present is to render the amendment virtually useless to the original plaintiffs. If those plaintiffs cannot enforce their claim without joining the additional plaintiffs, and the additional plaintiffs are barred from enforcing it by the law of limitation, it is obvious that the suit must fail." 7. There is, therefore, no force in this appeal, and it is accordingly dismissed with costs.