J&K BANK LTD Vs. GH RASUL NAQISHBANDI

JUDGEMENT

(1.) THIS is plaintiffs first appeal against the judgment and decree of the City Judge, Srinagar dismissing the plaintiffs suit as being barred by time.

(2.) THE plaintiff Jammu and Kashmir Bank Ltd. brought a suit on the 11th Baisakh, 2008 which corresponds to 23rd April, 1951 for the recovery of Rs.2,962 -12 -6 on the basis of a pro -note dated 12 -6 -1945 executed by one Ghulam. Rasul Naqishbandi in favour of the plaintiff bank. The pronote reads as under: "On demand We jointly and severally promise -to pay Jammu and Kashmir Bank Ltd., within their office at Srinagar or order the sum of Rupees three thousand only together with interest on such sum from this date at 2 per cent, above Reserve Bank of India rate subject to a minimum rate of five per cent, per annum with quarterly rests for value received. It appears that summons was issued to Ghulam Rasul Naqishbandi son of Ahad Shah Naqishbandi who appeared before the Court and contested the suit. Issues were framed and while Mr. Najam -ud -Din Buchh plaintiffs witness was being cross -examined it transpired that the person, intended to be used was not the one who was before the Court. The plaintiff put in an application on 17 -2 -2008 for summoning the real defendant. The plaintiff was ordered to amend the plaint but another application was made by the plaintiff those proceedings against Kh. Ghulam Rasul Naqishbandi son of Kh. Ahad Shah who was before the Court be discharged and summons be issued against the real defendant Ghulam Rasul Naqishbandi son of Mahmud Shah Naqishbandi. The trial Court issued summons to the new defendant in accordance with the prayer made by the plaintiff. Ghulam Rasul Naqishbandi son of Mahmud Shah appeared before the Court and pleaded that the suit against him was barred by limitation. This plea found favour with the trial Court and the plaintiffs suit was dismissed.

(3.) IN this appeal it is argued on behalf of the appellant that the trial Court has erred in dismissing the suit inasmuch as there had been no addition of the defendant but there was incomplete description of the defendant and the question of limitation did not arise. In support of this contention reliance is placed upon a Lahore Ruling reported as Girdhari Lal v. Dharam Das, AIR 1936 Lah 47 A. In this case a person wanted to sue one G who had given a cause of action to the plaintiff. Plaintiff was not aware of the identity of the person of G. A particular G was served, but it appeared that he was nor the person whom the plaintiff wanted to sue. So the plaintiff amended the plaint by correcting the description of G and got the right person served. The defendant contended that S. 22, Limitation Act applied as he was a substituted defendant and the suit was instituted against him on the date when the plaint was amended, and on that date the suit was barred by time, it was held, that the case was one not of substitution within S. 22, Limitation Act, but was one of mere misdescription and suit should be held to be instituted against the defendant when the suit was filed.