NAHARMAL Vs. HAZARILAL

JUDGEMENT

(1.) THIS is an appeal by the plaintiff Naharmal in a suit for money based on a Khata which was decreed by the trial court but on appeal dismissed by the Civil Judge, Alwar by his judgment dated the 18th June, 1956.

(2.) THE facts necessary for the determination of this appeal may be stated very shortly. THE plaintiff's case as disclosed in the plaint, originally, was that the suit Khata was executed by the defendant Rameshwar Lal on behalf of himself and his brother Hazarilal on the 19th February, 1950, after having gone into old accounts wherein he found a sum of Rs. 1497/-as balance due to the plaintiff, and further that although the name of Hazarilal appeared in the heading of the Khata, in had not been signed by him and therefore he (Hazarilal) bad been left out of the suit. This plaint was filed on the 17th February, 1953. On the 19th March, 1953 the plaintiff moved an application to the effect that the person who had really signed the Khata was Hazarilal and not Rameshwarlal and therefore the name of Hazarilal be allowed to be substituted for that of Rameshwarlal and an amendment of the plaint was prayed for accordingly. THE amendment was allowed and Hazarilal was brought on record and Rame-shwarlal's name was struck off. When Hazarilal thus came to be impleaded as defendant, he filed his written statement on the 7th September, 1953 wherein he inter alia contended that the suit was barred against him by limitation. THE trial court held that the case was one of misdescription under O. 1, Rule 10 (2) C. P. C. and therefore the name of the defendant could have been brought on record at any stage of the case and as such the suit was within time. THE suit was decreed ex parte as defendant Hazarilal did not take any interest in this litigation after filing his written statement. THE defendant then went in appeal to the Civil Judge, Alwar, who allowed the appeal and dismissed the plaintiff's suit on the ground of limitation. THE reasoning of the learned Judge was that the alteration made in the plaint by removing the name of Rameshwarlal and putting in that of Hazarilal instead was not a matter of mis-description but amounted to substitution of one person by another and in that view of the matter he held that when the application for amendment was submitted it was barred by time and therefore the suit should be deemed to have been brought against Hazarilal at the earliest when the application for substitution was made and not before and consequently the same must be dismissed on the ground of limitation. Aggrieved by this decision, the plaintiff has now come up in second appeal to this Court.