MUNICIPAL COMMITTEE Vs. IMRANALI HASANLI

JUDGEMENT

(1.) THIS is an application in revision against an order of the Subordinate Judge of the Second Class, Katol, allowing the substitution of one person for another as plaintiff. The suit was originally brought by Hasanali who stated in the plaint that he was the proprietor of the shop known as Imranali Hasanali in Katol. No objection was taken to the frame of the suit by the defendant the Secretary of the Katol Municipal Committee, and subsequently the plaintiff, on his own motion, applied for the substitution of the name of his son Imranali in place of his own. The reasons advanced by him were that he himself owned a shop of the name of Hasanali Mohammadali in Nagpur, that the shop at Katol was owned by his son and that neither of them had an interest in the shop of the other, but that the Income-tax Department had insisted on the profits of both shops being calculated as if they arose from one shop, that the income-tax had to be paid accordingly and that it was wrongly assumed that the suit should be brought in the name of the father who alone was responsible to the income-tax authorities for the income-tax although separate accounts were maintained for each shop. The learned Subordinate Judge held that the suit was originally brought in the plaintiff's name by reason of a bona fide mistake and allowed the substitution.

(2.) IT is contended on behalf of the applicant, the Secretary of the Katol Municipal Committee that the provisions of Rule 10, Order 1, Civil P.C., have no application to the present case where the original plaintiff had no right of suit, and in support of his contention the counsel has cited three rulings of the Bombay High Court. The decision in Heiniger v. Droz (1901) 25 Bom 433 has no application to the facts before me since the decision in that case turned on the point that the addition of a co-plaintiff would alter the case against the defendant as the rights of the proposed co-plaintiff were wholly different from those of the original plaintiff. The questions decided in Bhanu v. Kashinath (1896) 20 Bom 537 and in Sayad Abdul Hak v. Gulam Jilani (1896) 20 Bom 677 appear to be the same, namely that if a plaintiff at the time of bringing his suit has no interest in the subject-matter of the suit, he cannot acquire an interest by joining with him a plaintiff who has an interest in the subject-matter. It is to be remarked that in each of these cases what the plaintiff sought was to join a co-plaintiff with himself and it was held that this could not be done so as to clothe him with a right to sue which he would not otherwise have had. In the case before me there is no question of a demand by the plaintiff to clothe himself with such a right. By the application he expressly divests himself of any claim and prays for the substitution of a person who has a cause of action, admitting that he himself has none.

(3.) IN Krishna Boi v. Collector and Government Agent, Tanjore (1907) 30 Mad 419, it was held that the words "if the suit is brought in the name of the wrong person as plaintiff" could not be construed as excluding altogether persons who instituted the suit without any right to do so. The authority of this case is challenged in revision with the contention that this was a case of misdescription of parties. A reference to the case shows the contention to be peculiarly infelicitous. The suit was originally brought by the Collector of Tanjore to eject the defendant from a plot of land to the enjoyment of which the concubines of the late Eajah of Tanjore were entitled. A decree was passed in the Collector's favour, and in the course of an appeal by the defendant, the plaintiff put in an interlocutory application for the substitution of the concubines, and this was allowed. It is singularly clear that this is no case of misdescription, but of the substitution of parties who had a right to sue for a party who had not a right. The question of substitution of one plaintiff for another was not before the Court in any of the Bombay cases which have been cited, and if those cases are to be taken as laying down that no Substitution is possible in the case where the original plaintiff had no cause of action, with all respect I am not able to agree with an interpretation which appears to me to contravene directly the provisions of Order 1, Rule 10. The application is dismissed without notice to the opposite party.