Ram Das Sahu and Others vs Chhota Lal Mander and Others

Allanson, J.—This application is directed against an order of the Small Cause Court Judge declining to allow a defendant to be joined as a co-plaintiff and dismissing the suit. The suit was brought by the plaintiff on a promissory-note alleged to have been executed by defendant 1, in the name of defendant 2. Plaintiff sued as the beneficial owner. It was conceded that plaintiff cannot maintain such a suit under the Negotiable Instruments Act. When the suit was bound to fail on this ground, defendant 2 filed a petition admitting he was the benamidar for plaintiff, and asking that as a suit by him would be barred by limitation he should be allowed to join as a co-plaintiff and a joint decree be passed. Plaintiff filed a petition that he had no objection to defendant 2 being joined as a co-plaintiff. The lower Court has rejected these petitions. Hence the present application by plaintiff and defendant 2.

It is conceded on behalf of defendant 1 that if defendant 2 is transferred to the category of plaintiff, Section 22(1), Limitation Act, would not apply, and the suit would not be barred. It is contended on behalf of the petitioners that the lower Court has rejected the petitions on purely technical grounds. On the other hand, the learned advocate for defendant 1 argues that defendant has acquired a valuable right by virtue of the statute of limitation, that the Court had a discretion given it to refuse to allow defendant 2 to be made a co-plaintiff, and that it should not be held that that discretion has been improperly exercised.

Plaintiff admittedly cannot maintain the suit. Defendant 2 has admitted he is only a benamidar, and a separate suit by him would be time barred.

The learned advocate for the opposite party relies on Sayad Abdul Hak v. Gulam Jilani [1896] 20 Bom. 677. Defendant 2 has no interest in the subject-matter of the suit. The plaintiff had no right of action when he brought the suit, and in my opinion, he should not be allowed to remedy the defect by joining defendant 2 as a coplaintiff. The lower Court rightly exercised its discretion in refusing to deprive defendant 1 of the valuable statutory right which he has acquired. Moreover, a decree could not be passed in favour of the plaintiff because he has no right to sue. He should not be allowed to escape from this position by joining as a co-plaintiff, his admitted benamidar, whose right to sue would otherwise be barred by limitation. This is not a case in which the Court should exercise its revisional jurisdiction.

The application must be rejected with costs: hearing fee one gold mohur.