VYAS AUTOMOBILES Vs. CENTRAL INDIA MOTORS

JUDGEMENT

(1.) THIS is a petition to revise an order of the civil judge second class, Indore, permitting, the plaintiff non-applicant M/s Central India Motors to amend the plaint in the suit so as to, convert the suit originally filed by Shri Lilaram as Karla of a joint Hindu family firm bearing the name M/s Central India Motors into one as on, behalf of M/s Central India Motors, a firm registered under the Indian Partnership act.

(2.) IN the suit, as originally filed, the plaintiff alleged that M/s Central India Motors was a joint Hindu family firm of which the Karta was Lilaram; that the plaintiff firm sold to the defendant Govindsingh, who was the Sales Manager and representative of the defendant M/s Vyas Automobiles Nagpur, five motor car tyres and seat-covers; and that the defendant has failed to pay the price of the same. The plaintiff sued to recover the price of these goods together with sales tax and interest thereon. In its written statement the defendant petitioner raised the objection that the plaintiff-firm was not a joint Hindu family firm but that it was a partnership firm and as it had not been registered the plaintiff's suit was not maintainable because of the provisions of Section 69 of the Partnership Act. The plaintiff's suit was filed on 25th February 1953 and the petitioner's written statement was filed on 3rd July 1954. On 23rd August 1957 the plaintiff filed an application for amendment of the plaint so as to allege that the firm M/s Central India Motors was a firm registered under the Indian Partnership Act of which Lilaram and Lalchand were two partners, and for a correction in the title of the plaintiff in accordance with this allegation. The defendant opposed the amendment. It was, however, allowed by the trial Judge on the ground that the amendment intended to be made by the plaintiff was, merely a correction of misdescription of the plaintiff's name. The defendant has, therefore, preferred this revision petition.

(3.) MRS. Gandhe, learned counsel for the petitioner, urged that this was not a case of mere mis-description; that the plaintiff's suit was originally on behalf of a joint hindu family firm and by the amendment it was converted into one on behalf of a firm alleged to have been registered under the Indian Partnership Act; that, therefore, this was a case of substitution of one plaintiff for another; and that section 22 of the Limitation Act applied to such a substitution which could not be allowed by amendment of the plaint when its effect was to deprive the defendant of the defence of limitation.