A. Ramachandra Naidu vs Kandaswami Mudaliar

Panchapakesa Ayyar, J.—The facts are briefly these. The plaintiff, whose father and brothers are alive, brought a suit against the defendant,

a village munsiff, for recovering Rs. 2,000 as damages consisting of Rs. 500, the estimated damages to sugarcane crop during the period of its

attachment by the village munsiff for non-payment of kist, and Rs. 1,500, damages for personal reputation and mental suffering of the plaintiff

caused by the attachment. The suit itself was filed in 1946, the attachment in question having been effected in April, 1945, and having ceased about

May 1945. The plaintiff filed an amendment petition on 26th July, 1947, praying to amend the plaint by describing himself as the manager of the

joint family consisting of himself, his father and brothers instead of the suit being brought only in his own personal capacity as plaintiff. The learned

District Munsiff dismissed the amendment petition, holding that, if the amendment were allowed, it would amount to allowing a suit by the manager

of the joint family which would have become normally barred in May 1947, to be filed on 26th July, 1947, and kept alive illegally. This petition is

against that dismissal.

The lower Court committed no error in law in dismissing the petition. The learned Counsel for the petitioner urged that really a suit by a person

like the plaintiff, who happened to be the manager of the joint family at the time he filed the suit, would be a suit filed by him as manager, whether

he described himself like that or not, as in the ordinary case of a Hindu family manager suing on a promissory note or even on a sale deed, that no

question of limitation, or a fresh cause of action, would arise, and that the plaintiff''s only intention in filing the amendment petition was to describe

himself more fully and correctly, and to have an issue framed regarding his being the family manager or not on the date of the suit, and not to

enlarge the scope of the claim in the suit or to defeat any limitation right accruing to the defendant. The short answer to this is, that if there was

nothing else intended by the plaintiff by the amendment than to describe himself more fully and correctly, he can do so even in his own deposition,

and I do not apprehend that the lower Court will prevent him from describing himself as he pleases subject to cross-examination. So, the

amendment is virtually unnecessary, in that view. But my own feeling is that the real idea behind the amendment is to prevent the defendant from

contending that the plaintiff had no right to sue, he being not the pattadar or the joint family manager, and that even if he had a right to sue, his

damages, if any, would be restricted to the damages of one co-parcener among many. It was urged by the learned Counsel for the petitioner that

the plaintiff did not dream of asking for a pie more than the damages of Rs. 2,000 which he had originally asked for. Here again we must

remember that an enlargement of the scope of a plaint need not necessarily mean asking for more, and that retaining what one has asked for, when

one will be entitled to less, will also amount to an enlargement.

A further complication is introduced in this matter by the fact that the defendant is a village munsiff who can be sued only after issuing a notice

u/s 80 of the Civil Procedure Code. Such a notice was in fact issued by the plaintiff to the defendant on 1st February, 1946, without describing

himself as the joint family manager and without claiming damages to the sugarcane crop as the damages done to the sugarcane crop of all the

coparceners, and the damages to the reputation as the damages to the reputation of the manager of a big Hindu joint family. Several rulings, for

example, Bhagchand Dagdusa v. Secretary of State for India (1927) 53 M.L.J. 81 : L.R. 54 IndAp 338 : ILR 51 Bom. 725 (P.C.) have held that

where a notice u/s 80 of the CPC has to be given it must be strictly in conformity with the provisions of Section 80 without any material alteration

of the judicial capacity of the person suing, or the relief claimed, or the other incidental circumstances. It is obvious that a notice issued by a person

in his own name cannot be said to be the same as a notice issued by that person as the manager of a Hindu joint family, for the purpose of Section

80, whatever weight it may have in a decree in a suit. No doubt, the lower Court has not urged this somewhat formidable objection to the

amendment in its order as the learned Counsel for the petitioner has urged before me. But that will not prevent this Court from taking notice of that

fact when it is admitted on both sides that a notice u/s 80, Civil Procedure Code, was required in this case and was issued by the plaintiff to

defendant on 1st February, 1946. The learned Counsel for the petitioner urged that that notice must be construed as a notice by the plaintiff as a

joint family member, and, therefore, required no further notice, a contention with which I am wholly unable to agree. It follows that this petition

deserves to be dismissed. It is accordingly dismissed with costs.