AI Structured Summary
Not yet generated for this judgment
Judgment
H.W. Dhabe, J.—This is a revision filed by the firm M/s. Yeshwantrao Govindrao Tekwade, the defendant No. 3 in the suit for damages on account of breach of contract filed by the plaintiff M/s. Ramniklal Kanji, a registered partnership firm.
Briefly, the facts are that the non-applicant No. I filed a suit for damages on account of the breach of contract against the non-applicants Nos. 2 and 3 and the defendant No. 3, describing it at the time of the filing of the plaint as Yeshwant Govindrao Tekwade. The said suit was filed on 18-3-1982. The non-applicant No. 1/plaintiff, which according to it, carries on business in sugar on wholesale scale had entered into the contract for supply of sugar through the defendants 2 and 3, who were the brokers and the selling agents of the non-applicant No. 2/defendant No. 1. After the filing of the suit, the non-applicant No. 1/plaintiff filed an application on 9-7-1982 purporting to be under Order 6 rule 17 read with section 151, Code of Civil Procedure, for amendment of the name of the defendant No. 3 in the title of the plaint. According to the non-applicant No. 1/ plaintiff, there was a typing mistake in the description in the name of the defendant No. 3 because, according to it, the defendant No. 3 was a firm. As such according to the non-applicant No. 1/plaintiff, since there was mis-description of the name of the defendant No. 3, it claimed that it should be allowed to correct the same by amending the plaint suitably as stated in that application. The application was opposed on behalf of the defendant No. 3 firm on the ground that the non-applicant No. 1 plaintiff is seeking to add the new defendant to the suit and further that the suit against the new defendant was barred by time.
The learned trial Court, after examining the documents on record in the instant case, and taking into consideration the important fact that Yeshwantrao Govindrao Tekwade, shown as the defendant No. 3, had died long back in 1951, held that it was a case of mis-description of the defendant No. 3. There was no question of any new cause of action in the case and in fact the allegations in the plaint read with the documents on record disclosed that the plaintiff had intended to bring the suit against the defendant No. 3 firm. The learned trial Court referred to several decisions cited by the parties before it and after taking into consideration the provisions of section 21 of the Limitation Act, 1963, held that the mistake of the plaintiff in describing the name of the defendant No. 3 was a bona fide mistake. The learned trial Court, therefore, held that the amendment proposed by the plaintiff deserves to be allowed and the suit should be deemed to have been filed for all purposes against the defendant No. 3 firm on the date of the filing of the suit. The trial Court thus allowed the amendment sought by the plaintiff. Being aggrieved, the defendant No. 3 firm has preferred the instant revision against the said order.
Before I refer to the rival contentions of the parties, I may notice a few undisputed facts in this case. It is not in dispute that pursuant to the summons issued in the then existing name of the defendant No. 3, one of the partners of the Yeshwant Govindrao Tekwade firm, accepted the said summons without any protest and without bringing the fact to the notice of the Court that the description of the defendant No. 3 in the plaint was incorrect. The partner who received the notice was the partner of the Yeshwantrao Govindrao Tekwade firm, and he filed the power on behalf of the said firm. As soon as the plaintiff noticed the mistake, it filed an application for amendment for correction of the mis-description of the name of the defendant No. 3. referred to above. The defendant No. 3 firm also filed an application for dismissal of the suit on the ground that it being against the dead person viz. the defendant No. 3 in person it is a nullity. It is thus apparent that it was clear to the defendant No. 3 firm that the plaint in the instant suit was against it.
The further facts which appear from the documents on record are that there was a telegram dated 2-4-1979, sent by the plaintiff to the defendant No. 1 in which it was alleged that the plaintiff purchased the goods from the defendant No. 1 through the firm of the said Tekwade. In the notice dated 27-4-1979 given by the plaintiff to the defendant No. 1. reference again is to the firm M/s. Yeshwant Govindrao Tekwade. The reply sent by the defendant No. 1 dated 30-5-1979 to the notice of the plaintiff also describes the selling agent as the firm Yeshwantrao Govindrao Tekwade. There is also the letter of the defendant No. 3 firm dated 20-2-1979 to the plaintiff regarding the contract in question. It, however, appears that in the notice of the suit given by the plaintiffs counsel on 11-2-1981, the defendant No. 3 is described not as firm but as Yeshwantrao Govindrao Tekwade. Thereafter when the suit is filed, the defendant No. 3 is described as Yeshwantrao Govindrao Tekwade. It is thus clear from the above facts that the cause of action in the suit is really against the defendant No. 3 firm and not against individual Yeshwantrao Govindrao Tekwade, who in fact had died long back in 1951. It appears that there is a typing mistake in the draft initially of notice prepared by the counsel for the plaintiff in the description of the defendant No. 3 which persisted in the draft of the plaint also due to inadvertence. However, as soon as the mistake was detected, the plaintiff filed an application for amendment. In the circumstances it cannot be said that the proposed amendment of the title cause is not bona fide, even assuming that there may be some negligence on the part of the plaintiff or its counsel. The learned counsel for the applicant has, however, relied upon the definition of the words "in good faith" given in section 2(h) of the Limitation Act, 1963, to show that if due care and attention is not shown then the action is not in good faith. Apart from the fact that it cannot be said in this case that due care and attention was not shown because since the typing mistake cropped up in the notice, I would presently show that the definition of the words "in good faith" in the facts of the instant case will not apply because the provision of section 21 of the Limitation Act would not apply to the instant case. The question of good faith would have, therefore, to be examined in the context of its normal connotation, according to which it cannot be said that the application for proposed amendment is not in good faith. ''
The learned counsel for the applicant has urged before me that the suit filed was against the dead person and was, therefore, a nullity. Hence the application for amendment of the title cause was not maintainable at all. The question, therefore, to be seen is whether the suit was filed against the dead person by the plaintiff or whether it was the case of mis-description of the existing person. As I have pointed out above, the frame of the suit and the documents on record would show that the sole agent was the defendant No. 3 firm through whom the contract was entered into. The individual by name Yesnwant rao Govindrao Tekwade was not alive on the date when the contract was entered into which clearly shows that the plaintiff had filed the suit against the defendant No. 3 firm. A perusal of the allegations in the plaint do not show that the plaintiff was filing the suit against the said Yeshwantrao Govindrao Tekwade in person. In these circumstances, it cannot be said to be a suit against the dead person but a suit essentially against the defendant No. 3 firm, which was not properly described in the plaint. If the suit is held to be against the existing person, then it cannot be a nullity and the plaintiff was entitled to correct the description of the defendant No. 3 by filing the suitable application.
Both the parties have relied upon several decisions in support of their rival contentions, after perusal of which the principle which flows is as stated by me above. If that is so, the learned trial Court was not in error in allowing the application for amendment proposed by the plaintiff.
Another contention raised in this regard by the applicant-defendant No. 3 is that the application for amendment was not maintainable under Order 6 rule 17 read with section 151, Code of Civil Procedure. It is, however, well settled that if a wrong provision is referred to but in fact the application was maintainable under Order 1 rule 10, Civil Procedure Code, the order of the Court passed on the Replication was referable to its power under Order I rule 10, CPC and the application allowed to be filed under Order 6 rule 17 read with section 151, CPC could not be thrown out at once on the ground. There is, therefore, no merit in the above contention.
The next question which arises for consideration is the submission on behalf of the applicant that the claim was barred by limitation on the date when the defendant No. 3 firm was allowed to be joined as a party. I have already held above that it is not the case of the new defendant being joined as a party. In fact, it is a case of mis-description of the existing defendant No. 3. If that is so, the question of limitation would not arise because it will be deemed to be the defendant on the date the suit was filed. The above view is well settled. 1 may refer in this regard to the decision in Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon-1. There is, therefore, no question of application of section 21 of the Limitation, Act, which is applicable to the cases where a new plaintiff or a new defendant is intended to be joined as a party. This is also the view taken by the Andhra Pradesh High Court in the case of Andhra Pradesh Electricity Board v. the Firm of M/s. Patel and Patel a registered partnership, Hyderabad and others2. In this view of the matter, the impugned order of the learned trial Court has to be upheld.
In the result, the revision fails and is dismissed. However, there will be no order as to costs.