MURA MOHIDEEN Vs. V O A MOHOMED

JUDGEMENT

(1.) This is an appeal against the Judgment of Balakrishna Aiyar J. in s. A. No. 57 of 1947 filed by reason of the leave granted by the learned Judge under Clause 15 of the Letters Patent.

(2.) The appellants in this Letters Patent appeal were the defendants in the suit O. S. No. 497 of 1944 on the file of the District Munsif's Court of Tinnevelly filed by the respondents for the recovery Of the value of articles supplied to the defendants between 27-10-1941 and 19-1-1842. The plaintiffs were the partners of a firm which was carrying on business in Burma under the trade name of "V. O. A. Alliar and Sons" which was registered under the law for the registration of partnerships in force in Burma. It was with this firm that the defendants- appellants had dealings as a result of which a sum of Rs. 1657-9-0 became due to the plaintiff-firm. When Burma was overrun by the Japanese both the partners of the firm "V. O. A. Alliar and Sons" as well as defendants-appellants came over to their native places in Madras State. On 26-10-1944 a suit was instituted for the recovery of this sum by the respondents in the name of "V. O. A. Alliar and Sons" through ode of the partners "V. O. A. Mohamed." When notice was served upon the defendants they objected to the maintainability of this suit because under - the terms of Order 30, B. 1, Civil P. C., it is only the firm carrying on business in India that could take advantage of the provisions of this order. As the plaintiffs were admittedly carrying on business only in Burma the defendants objected that the suit as framed did not lie. In view of this objection an application I. A. No. 1037 of 1945 was filed on 5-9-1945 to amend the plaint by the substitution of the names of the three partners of the firm "V.O.A. Alliar and Sons" in the place and instead of the name of the firm. This application was allowed by the learned District Munsif and the plaint. was amended as prayed for in December 1945. Out of the defences raised to the suit the only one that remains is that of limitation. .The point raised was that the plaintiff in the suit as ori-ginally instituted was a non-existing person or entity, that the plaint became effective only when three partners were brought on record as plaintiffs in December 1945 and that by this date the claim was barred by limitation. It will be seen that this raises for consideration the question as to whether Section 22, Limitation Act applied so as to render the impleading of the three partners a substitution or addition of a new plaintiff within the meaning of that section. The learned District Munsif held that there was no addition or substitution of a new plaintiff but there was merely a correction of a misdescrip-tion and on this ground held the suit to be in time; and a decree was passed in favour of the plaintiffs.

(3.) The defendants took the matter on appeal to the District Court of Tinnevelly in A. S. No. 101 of 1946 and the learned District Judge differing from the trial Court held th'at the suit was out of time. The plaintiffs filed a second appeal to this Court in S. A. No. 57 of 1947 which came on for hearing before Balakrishna Aiyar J. and the learned Judge reversed the decision of the learned District Judge by holding the suit was in time and granted a decree to the plaintiffs. In view however of the conflict in the authorities which was noticed in his judgment, the learned Judge granted leave to appeal from his judgment in pursuance of which this Letters Patent appeal is filed.