UDHAVJI ANANDJI LADHA Vs. BAPUDAS RAMDAS DARBAR

JUDGEMENT

(1.) This is an appeal from a decree passed by the Joint Civil Judge, Senior Division, Belgaum, in a partnership action, and the facts leading up to this litigation may be briefly stated.

(2.) A partnership was started between the plaintiff's father and defendant 1 in 1904 and the plaintiff's father died on 30th April 1927. The plaintiff filed the suit from which this appeal arises for dissolution of partnership and for accounts alleging that even after the death of his father the partnership continued. On 23rd August 1935, the plaintiff applied for amending the plaint for alleging an alternative cause of action, and the alternative cause of action was that in the event of its being held that there was no subsisting partnership after the death of the plaintiff's father, accounts should be taken on the footing that the partnership stood dissolved on the death of the plaintiff's father. That application was rejected by the trial Court, and the trial Court holding that there was no subsisting partnership after the death of the plaintiff's father, dismissed the plaintiff's suit. An appeal was preferred to this Court, being First Appeal No. 164 of 1938. This Court took the view that the Court below was in error in not granting the amendment. It took the same view as the trial Court with regard to the original cause of action, pleaded by the defendants. But Divatia J, in delivering the judgment of the Court thought that it was open to the plaintiff at its inception to plead an alternative cause of action which was inconsistent with the first cause of action, and if that were possible, there was no reason why an amendment should not be permitted to plead an inconsistent cause of action at a subsequent stage of the suit. It was then urged upon Divatia J. that the question of limitation would have to be considered. Divatia J. realised the force of that argument, but he ob served that it was not possible for the Court to go into the question of limitation and therefore, as I read the judgment, Divatia J. was under the impression that the trial Court would go into the question as to whether the plaintiff's cause of action would have been barred at the date the amendment was applied for, namely, 23rd August 1935; and after considering that and if it was not so barred, the amendment should be allowed. But Divatia J. then went on actually to make the order allowing the amendment but made this order conditional upon the question of limitation being considered by the Court below. Now, when the matter went back to the trial Court, both the parties proceeded on the assumption that the amendment had already been made. The defendants contended that the amendment could not relate back to the filing of the suit and therefore, limitation should be considered as from the date of the amendment. The plaintiff contended that the amendment did relate back to the date of the filing of the suit, and if the suit was not barred, the alternative cause of action asked for would also be in time. The learned Judge Page 2 of 12 Udhavji Anandji Ladha and Ors. vs. Bapudas Ramdas Darbar (13.04.1949 - BOMHC) took the view that it did relate back to the date of the filing of the suit, that the suit was in time and that, therefore, no question of limitation arose. Now, Mr. Datar before us has very fairly conceded that it is not open to him to argue that the amendment could not relate back to the filing of the suit, and what he has urged and urged very strenuously is that the proper effect to be given to the judgment of the High Court is that we must consider whether the cause of action was barred on 23rd August 1935, when the application for amendment was made, and if we come to that conclusion we should hold that the learned Judge was in error in allowing the amendment, Unfortunately it is too late in the day to put forward this argument. This argument was in fact not presented to the Court below; but as I have already said, parties proceeded on the assumption that the order for amendment was made and Divatia J.'s own judgment does indicate as if the High Court had made the order. Therefore, in our opinion, it is not open to Mr. Datar now to contend that the order for amendment should not have been made till it was ascertained whether the cause of action would have been barred or not on 23rd August 1935. The argument loses some of its importance because in our opinion, as I shall presently point out, even if Mr. Datar's argument is accepted, as a matter of fact the cause of action of the plain-tiff was within time even on 23rd August 1935.

(3.) Now, the main point that has been argued in this appeal is the question of limitation. If this is a suit for accounts of a dissolved partnership, the suit would be barred within three years of the death of the plaintiff's father and that would be 30th April 1930. Now, it is important to note in this connection that the plaintiff was born on 13th December 1910 and therefore he attained majority on 13th December 1928. Therefore when the cause of action accrued, the plaintiff was a minor, and under Section 6, Limitation Act he would be entitled to file a suit within three years of his attaining majority. That would be on 13th December 1931. The suit has been field on 27th September 1933. Therefore, prima facie the suit is out of time. Now, in order to save limitation, the plaintiff has relied on various acknowledgments. These are Exs. 58 to 63 and the dates respectively are 7th January 1928, 25th August 1931, 8th December 1931, 8th August 1932, 25th August 1932, and 22nd July 1933.