PARBHUDAS GIRDHARDAS SHAH Vs. LALLUBHAI KHUSHAL MEHTA

JUDGEMENT

(1.) In this case the plaintiffs who are a firm carrying on business as commission agents in Bombay sue the three defendants for a sum of Rs. 3,150, balance agreed by defendant No. 1 to be paid in respect of purchase price of goods sold and delivered. The plaint alleges in paragraph 1 that the defendants are members of a joint undivided Hindu family and that defendant No. 1 is the manager of the joint family business. Then in paragraph 3 it is alleged that the plaintiffs from time to time under instructions of the defendants purchased in Bombay various goods and consigned them to the defendants at Pen, and then it is alleged that an account was made up when a sum of Rs. 3,150 was found due and payable by the defendants to the plaintiffs at foot thereof, and that the defendants through their said manager, defendant No. 1, signed an acknowledgment in respect of the plaintiffs goods. So that, reading the plaint as a whole, I think it is clearly a claim against the defendants as members of a joint Hindu family, the allegation being that the manager of the family-defendant No. 1-had signed an acknowledgment of the amount due.

(2.) The first defence taken by defendant No. 2, who is the appellant, was that he was an agriculturist and that having regard to the Dekkhan Agriculturists Relief Act this Court had no jurisdiction. On that plea a reference was made to the learned Commissioner to ascertain the amount of the income, agricultural and non- agricultural, of defendant No. 2. The Commissioner found that the non-agricultural income exceeded the agricultural income, and on exceptions being taken to that finding, the learned Judge dismissed them, and we have already held that the learned Judge's decision was right. But in the course of those proceedings before the Commissioner the plaintiffs no doubt came to the conclusion that they would have considerable difficulty in proving that this business to which they had supplied goods, which was a grocery business, was joint family business. Accordingly before the hearing they applied to the learned Judge for leave to amend the plaint by alleging as an alternative claim that defendants Nos. 2 and 3 were liable by reason of the provisions contained in Secs.247 and 248 of the Indian Contract Act as having been admitted to and derived benefits from the said grocery business, and that amendment was allowed. It was not, I think, brought to the attention of the learned Judge when he allowed the amendment that the claim of the plaintiffs at the date of the amendment was more than three years old, and their claim, if a new one, was, therefore, barred by limitation. It is well established by many authorities that the Court will not as a rule allow an amendment which deprives the opposing party of a right which he has acquired. It was contended before us that the amendment in question really introduced a new cause of action which had become barred at the date of the amendment and that therefore the amendment ought not to have been allowed, Mr. Coltman for the respondents on the other hand says that the cause of action is the same in the original and amended plaint though the grounds upon which the case is based may be different in the two cases and he referred us particularly to the case of Kisandas Rupchand V/s. Rachappa Vithoba, s.c. 11 Bom. L.R. 1042. I only desire to say in reference to that case that I think the general principles on which the Court acts in relation to amendments were accurately stated by both the learned Judges; whether in applying those principles the Court arrived at a correct conclusion it is not necessary to consider. It was further contended by Mr. Coltman, and I think correctly, that even if the amendment did introduce a new cause of action, it is within the power of the Court in special circumstances to allow the amendment even though the cause of action may be barred by limitation. He drew our attention to the judgment of the learned Judge in this case in dealing with the exceptions to the Commissioner's report from which it appears that defendant No. 2 had been guilty of very gross delay, and it was only because of that delay that any question under the Indian Limitation Act might arise. I think there is a good deal of force in that argument. I am myself disposed to think that the amendment offended against the general principle discussed above, since it deprived defendant No. 2 of an acquired right, but having regard to defendant No. 2's own conduct, I am not prepared to say that this was not a special case in which the amendment might be allowed. We have, therefore, to deal with the case on its merits.

(3.) Now, on the merits, the learned Judge held in the first place that this shop to which the plaintiffs had supplied goods was not a joint family ancestral shop and that the plaintiffs could not succeed on the ground of joint family. Against that finding there are no cross-objections and therefore that finding is conclusive. Then the learned Judge went on to hold on the amended plea that the evidence showed that the appellant (defendant No. 2) who was a minor had been admitted by defendant No. 1 to the benefits of the partnership in the grocery business, and that, therefore, Section 247 of the Indian Contract Act applied. He further held that the evidence showed that the appellant on attaining majority did not give public notice under Section 248 of the Indian Contract Act, and, therefore, he was liable under that section. The learned Judge does not in terms say on what evidence he relies, and having been through the relevant passages of the evidence to which Mr. Coltman has referred, I am quite unable to see any evidence in support of the proposition, that the appellant was admitted to the benefits of this business, and, that, therefore, Section 247 applied. The case of Sanyasi Charan Mandal V/s. Krishnadhan Banerji, S.C. 24 Bom. L.R. 700, referred to by Mr. Somji, shows that it is for the person setting up the claim under Section 247 to prove the facts which bring the case within that section. In this case the evidence was in a very peculiar state, because at the hearing the plaintiffs tendered a certified copy of the whole of the evidence taken before the Commissioner on the issue as to the appellant's income, and that evidence was admitted en bloc I think that course was wrong. No doubt the appellant's own evidence was admissible against him as an admission. But I fail to see how the evidence of defendant No. 1 could be evidence of an admission against defendant No. 2. Mr. Coltman has, somewhat boldly, argued that inasmuch as defendant No. 1 was called before the Commissioner as defendant No. 2's witness upon the issue as to defendant No. 2's income, therefore he was an agent for defendant No. 2 before a different Judge upon a totally different issue, viz., as to whether defendant No. 2 was admitted to the benefits of the partnership with defendant No. 1, and that as such agent his evidence was admissible under Section 18 of the Indian Evidence Act. We invited Mr. Coltman to produce authority in support of his proposition, but I need hardly say he was unable to do so. Apart from the fact that defendant No. 1 was called as a witness before the Commissioner, it is quite clear that he was not an agent of defendant No. 2, because before the hearing before the Commissioner defendants Nos. 1 and 2 had separated and had ceased to be members of a joint family. We think, therefore, that before the learned Judge the evidence of defendant No. 1 taken before the Commissioner was not relevant. In my opinion there was really no evidence at all to bring the case within Secs.247 and 248 of the Indian Contract Act. That being so, I think the appeal must be allowed with costs.