East Indian Railway Co. vs Ram Lakhan Ram

Das, J.—I think that this appeal must succeed. It is not disputed before us that the suit as filed on the 23rd December 1920 was against the Agent, East Indian Ry. Co., and that by his application for amendment, the plaintiff sought to substitute the Railway Company for the defendant originally sued. It is admitted that, had the suit been filed at the date when the plaintiff presented his application for amendment, it would have been open to the Railway Company to contend that the suit was barred by limitation; and the learned Munsif giving effect to the well-known rule that amendments are not admissible when they prejudice the rights of the opposite party as existing at the date of such amendment, declined to accede to the application made on behalf of the plaintiff. The learned Subordinate Judge in the Court below has come to the conclusion that the application for amendment of the plaint ought to have been allowed by the learned Munsif and in that view he has remanded the case to the Court of first instance for disposal on the merits.

In my opinion the question must be decided on the terms of Order 1, Rule 10(5). of the Code of Civil Procedure. On the language deliberately employed by the legislature in the provision of the Code to which I have referred, there is no room for controversy that the proceedings as against any person added as a defendant shall be deemed to have begun only on the service of summons. Now it is admitted before us that the suit as against the Railway Company would be barred by limitation if the proceedings in connection with the suit be deemed to have begun only on the service of the summons. That being so, it seems to me that the learned Munsif was right in declining to accede to the application made before him on behalf of the plaintiff if the Railway Company be regarded as an added party to the suit.

It was strongly contended before us that the Railway Company should not be regarded as "a person added as defendant" within the meaning of the term as used in Order 1, Rule 10(5) of the Code. I quite admit that where there is a misdescription of the defendant in the cause title there is complete power in the Court to make the necessary correction, without any regard to lapse of time; for in a case of misdescription the Court will not have any difficulty in coming to the conclusion that the defendant had been substantially sued though under a wrong name.

The cases relied upon by the learned vakil for the respondent are all cases of misdescription, and the decisions in all these cases rest on the view that the defendant sought to be added as a party was always in the record as a defendant, though under a wrong name.

In the case of Manni Kasaundhan v. Crooke [1879] 2 All. 296 the plaintiff intended to sue, and did sue, the Municipal Committee of Gorakhpur, but instead of suing the Committee through the President as the plaintiff should have done, he sued it through the Secretary. It was a case of misdescription, pure and simple and the Allahabad High Court pointed out that no personal relief was sought against the Secretary, the whole object of the plaintiff being to bind the Committee by any decree that might be passed in his favour.

In Peary Mohan Mukerjee v. Narendra Nath Mukerjee [1905] 32 Cal. 582 the plaintiffs claimed a decree expressly against the debutter estate and the defendant was brought on the record not only in his personal capacity, but also as the Receiver of the debutter estate. Subsequently after the expiry of the period of limitation prescribed for the suit the plaint was amended and the defendant (who was a party on the record both in his personal capacity and as Receiver of the debutter estate) was described in the cause title as the shebait of the debutter estate. The Calcutta High Court in affirming the view of the lower appellate Court that amendment should be allowed, pointed out that the plaintiffs expressly asked for a decree against the debutter estate and that the only question was whether the debutter estate was actually before the Court, as in substance it was throughout; and it expressed the view that "where relief was originally claimed as against a party who had 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."

As I read, the decision of the Calcutta High Court is based on the view that where the party intended to be sued and substantially sued has been misdescribed in the cause title there is complete power in the court to give the appropriate relief to the plaintiff without any regard to the terms of Section 22 of the Limitation Act. The other cases (except one to which I shall presently refer) upon which reliance was placed substantially take the same view.

But in my opinion there is all the difference in the world between misdescribing a party intended to be sued and suing a wrong party. It was strongly contended before us that the plaintiff intended to sue the Railway Company and in substance sued the Railway Company; but the plaint speaks for itself; and it is quite impossible for us to have resource to extrinsic evidence. A personal decree was sought against the Agent, East Indian Railway Company, and there is no suggestion in the plaint that it was sought to bind the Railway Company by any decree that the plaintiff might obtain against the defendant. No question of representation arises in this case and it is quite impossible for us to have recourse to the doctrine enunciated in Peary Mohan Mukerjee v. Narendra Nath Mukerjee [1905] 32 Cal. 582 . The only case which appears to support the contention of the respondent is the case of The Saraspur Manufacture Co. Vs. B.B. and C.I. Railway Co., ; but there is this difference between the Bombay case and the case before us that though the title of the defendant was entered in the plaint as follows:

The Agent, B.B. & C.I. Ry. Company, Ltd., the prayer was that the defendant Company should pay the amount sued for. In these circumstances the Bombay High Court took the view that the relief having been claimed against the Railway Company and not against the Agent personally, it was the Railway Company which was substantially the defendant in the suit. But as I have pointed out, in the present case the plaintiff asks for a personal decree against the Agent of the Railway Company. The point has been expressly decided by my learned brother in the case of Sinehi Ram Bihari Lall Vs. The Agent East Indian Railway Co., , and I entirely agree with the conclusion at which my learned brother arrived. It may be pointed out that a similar view has been taken at least in two cases in the Calcutta High Court: the case of Nubeen Chunder Paul v. Stephenson [1871] 15 W.R. 534 and the case of India General S.N. & R. Co., Ltd. v. Lal Mohan Saha [1915] 43 Cal., 441.

In the last-mentioned case the suit was filed against two Companies and the defendant Companies were described as "the Indian General Steam Navigation and Railway Company, Limited" and "the River Steam Navigation Company, Ltd." by their joint Agent, A.E. Rogers. Notice was served on Mr. Rogers and subsequently Mr. Rogers retired from the service of the Companies and left the country. At the trial of the suit, the plaint was amended and Mr. Rogers''s name was omitted from the title of the suit which was proceeded with against the two Companies. It was held by Mukerjee and Roe, JJ., that the plaint as originally framed was in contravention of Order 29, Rule 1 of the Code. It was argued that the suit was in essence brought against the two Companies and that the plaintiffs mentioned the name of Mr. Rogers as the person upon which the process was to be served. With regard to this argument the learned Judges observed as follows:

There is obviously no foundation for this theory. The suit was substantially against Mr. Rogers, although he was sued in his capacity as joint Agent of the two Companies mentioned. The suit, however, should have been framed as one against the two Companies described by their proper names, as is clear from the decisions mentioned. There is plainly no excuse for the mistaken course deliberately adopted by the plaintiffs.

The question then arose whether in the circumstances of the case the Court below should have amended the plaint by striking out the name of Mr. Rogers and allowing the suit to proceed against the Companies. On this point the learned Judges said as follows:

In the circumstances of this case as no question of limitation arises even if the suit be taken to have been instituted against the two Companies on the date when the plaint was allowed to be amended we are of opinion that the amendment may stand. I read the decision of Mr. Justice Mookerjee as containing a strong intimation to the effect that amendment would not have been allowed if any question of limitation arose in the case. In my opinion when there are two known persons in existence and the plaintiff brings the suit against one of them and afterwards applies to have the other brought on the record as a defendant on the ground that he all along intended to sue the other and in substance he sued the other, and no question of representation arises in the case, it is impossible to maintain the view that the case is one of misdescription.

I would allow the appeal, set aside the decree passed by the Court below and restore the decree passed by the Court of first instance. The appellant is entitled to his costs throughout.

Ross, J.

I agree.