FIRM SETH HIRALAL HAZARILAL Vs. JAGAN NATH

JUDGEMENT

(1.) THIS is an appeal against the judgment of the learned District Judge Baran, dated 14-12-49, by the plaintiff in a suit for recovery of money.

(2.) THE suit was originally instituted by Hazarl-lal describing himself as the son of hiralal, proprietor of the firm of Seth Hiralar Hazarilal. The defendant Jagannath was described as son of Lalli Bam, owner of the shop of Lalliram Jagannath at tekneri Pachar, Madhya Pradesh. The suit was for recovery of Rs. 3703/-/3. It was Instituted on 23rd October, 1948, in the Court ot Civil Judge, Baran, and the cause of action lor purposes of limitation was stated to have arisen on the 15th of november 1945. The defendant took a preliminary objection that the plaintiff was not the sole owner of the firm Hiralal and Hazarilal, but one Sunderlal was also a partner, and that as the suit was riot in the name of the firm the suit was bad for nor-joinder. The plaintiff filed an application on 16th February, 1849, praying lor amendment of the plaint so as to make the firm Hiralal Hazarilal as the plaintiff. In this application it was mentioned that Sunderlal was not made a party, because he had not contributed towards the capital of the firm. It seems to have been impliedly admitted that Sunderlal was a partner in the firm, and this con-clusion is confirmed by the fact that the second appeal was riled on behalf of the firm Hiralal hazarilal through both Seth Hazarilal and Sunder, The amendment was allowed by the trial Court on 19th March, 1949. The defendant raised a plea of limitation on the ground that when the proper party, viz. , firm Hiralal Hazarilal was brought on record on 19th March 1949, the suit had become barred by limitation. A preliminary issue on limitation was framed and decided against the plaintiff, and the suit was dismissed by the Civil Judge, Baran, on 24th August, 1949. The plaintiff filed on an appeal, but without success. Hence this second appeal.

(3.) IT is not disputed that the claim would become barred by time if it be considered that the suit was instituted by the proper party on 19th March, 1949, or for that matter on 16th February, 1949, when the application was made for amendment of the plaint.