BIRBAL Vs. THAMMAN SINGH

JUDGEMENT

(1.) THIS is a first appeal by the defendant Birbal against the judgment and decree of the Civil Judge, Ganganagar, dated 30th April, 1952.

(2.) THE facts giving rise to it are that on the 1st March, 1950, two of the respondents viz. Thammansingh and Sherbahadur brought a money suit for Rs. 7,400/- on the basis of two bonds Ex. P-1 and Ex. P-2, in the court of the Civil Judge, Ganganagar. THE other two respondents Thakursingh and Kartarsingh were impleaded as defendants. On the 20th March, 1950, respondents Nos. 3 and 4 pre-sented an application to be transposed as plaintiffs. That application was allowed by the Court and show they were transposed as plaintiffs. THE only defendant then left was the present appellant Birbal. Birbals's reply in the trial court was that both the documents on which the suit based were not executed by him and that they were without any consideration. It was further pleaded that the rate of interest claimed by the plaintiffs was penal, that the suit suffered from the defect of multifariousness, that it was time-barred and therefore it should be dismissed. THE trial court framed the following five issues: (1) Whether the documents, Ex. P-l and P-2 sued upon were executed by defendant Birbal and he is liable to pay their amount? (2) Whether the plaintiffs were entitled to bring the suit for the whole amount? (3) Whether the suit was not maintainable since the claim was founded on two documents and therefore, there, was defect of multifariousness? (4) Whether the suit was time-barred? (5) Whether the interest claimed was penal and if so, what rate of interest the plaintiffs were entitled to get? All the issues were decided by the trial court against the defendant and the entire suit for Rs. 7400/- was decreed with costs.

(3.) IN the first case of Meyappa Chetty vs. Subramanian Chetty (4) it was observed by their Lordships of the Privy Council that - "if A is the right person to sue, it would be clearly wrong to allow him, for the sake of avoiding the limitation ordinance, to take advantage of a suit improperly instituted by B. " If this opinion were expressed by their Lordships of the Privy Council after considering sec. 22 (2) of the INdian Limitation Act, the argument of appellant's learned advocate would have been unassailable because all the courts in INdia were at time bound by the decision of their Lordships of the Privy Council and different view could not be taken by any Court in INdia thereafter; but it may be pointed out that the said observation was made in connection with a case which had gone to their Lordships on appeal from the Supreme Court at Singapore. Their Lordships were considering the provisions of the Straits Settlements Limitation Ordinance (No. VI of 1896), which was applicable to the case and also the Civil Procedure Code (Ordinance No. 31 of 1907), which was in force there. There was no case of transposition of parties in that matter. It was a suit for declaration and dissolution of partnership and for accounts. That suit was originally filed by a plaintiff on 23-10-1911, to whom letters of administration Pendente Lite were granted. Later on, the previous letters of administration were cancelled and in lieu thereof letters of administration with the will annexed, were granted by the Supreme Court of the Straits Settlements to another person on 14th April, 1913 An order was made striking out the original plaintiff and substituting another person in his place. It was held by their Lordships that - "though the Administration derives title solely under the grant and cannot institution an action before such grant, as the will was provable in the Courts of the Straits Settlements under Sec. 3 of the C. B. C. Ordinance 31 of 1907, there was no impediment under sec. 17 (1), Limitation Ordinance, for the executor who under the law derived his title and authority from the will of his testator and not from the grant of probate,from instituting an action even before be proves the will, within the period of limitation prescribed, that is, 3 years from dissolution. " Thus, in that case there was a substitution of a new plaintiff in place of the old one and at the time when the new plaintiff was substituted the suit had become time-barred. There was no question of transposition of parties in that case because the new plaintiff was not on record before the expiry of the period of the limitation. It was under those circumstances that the said observation was made by their Lordships of the Privy Council. It further appears that sec. 22 of the Straits Settlements Limitation Ordinance was analogous to the corresponding sec. 22 of the INdian Limitation Act of 1877. It seems that there was no provision in the Straits Settlements Limitation Ordinance similar to sub sec. (2) of sec. 22 of the INdian Limitation Act as it stands at present and, therefore, the said observations of their Lordships of the Privy Council are of little help in interpreting the provisions of sub-sec. (2 ).