T V DEVARAYA REDDIAR Vs. LIPTONS, LTD

JUDGEMENT

(1.) This is a civil revision petition to revise an order of the Chief Judge of the Presidency Small Cause Court at Madras. The necessary facts may be briefly stated: The respondents in this Court, Liptons, Ltd., instituted this suit against two defendants, the 2nd defendant being described as one A.R. Devaraya Reddy, brother-in-law of the 1 defendant. For some reason the 1 defendant seems to have been exonerated and as the 2nd defendant in the suit was not properly served, there was apparently an order for service on him by substituted service and thereupon a decree was passed ex parte against him. The decree was passed in or about December, 1923, and an application seems to have been made about two years afterwards on or about 22nd December, 1925, on behalf of the plaintiffs for amending the decree by describing the judgment-debtor, the original 2nd defendant aa T.V. Devaraya Reddy instead of A.R. Devaraya Reddy; that is, a simple application for the amendment of the initials of the judgment-debtor in the decree passed by the Court. The petition for the amendment was supported by affidavits. In answer to the application, of which apparently notice was ordered and served on the present petitioner, he appeared and filed an affidavit. In that affidavit he amongst other matters set out that he did not know of the suit, that he was not properly served with summons in the case, that he was not aware of the passing of the decree and that, therefore, the decree could not possibly be regarded as properly passed against him, and tne position was taken up on his behalf that the decree must be regarded as a decree passed against some other person and not against him. The application for amendment was objected to on the ground that the original judgment-debtor was a person entirely different to the person there and then before the Court as respondent to this amendment petition and that the ordering of the amendment would hare the effect of, by way of amendment, making a decree against soma was not a defendant, who was not properly served and who had no opportunity to defend the action. At this stage the learned Chief Judge of the Small Cause Court who had apparently all these facts before him came to two conclusions, (1) that the respondent before him had not been shown to have been properly served with the summons in the suit and that the decree appeared to have been passed without such service and that the defendant did not also know of the suit, till the proceedings with which he was then concerned; and (2) that according to the plaintiffs the original defendant in the action against whom the decree passed was passed ex parte was the very identical person who was appearing as respondent to the amendment petition and that there was no substance in the contention that the original A.R. Devaraya Reddy was a person different to the T.V. Devaraya Reddy then appearing. He thereupon made an order vacating or setting aside the decree passed ex parte and allowing the amendment of the plaint It is true, as contended for by the learned Vakil for the petitioner, that there is no power in the Court to order the amendment of any pleadings subsequent to the passing of a decree in the suit. Assuming for the sake of argument that the person described as judgment-debtor in the decree was the same person as the one appearing as respondent in the amendment application, then the plaintiffs not having taken care to describe the defendant properly, must be confined to such remedies as they can get against the person described in the decree in the manner he was. If on that decree they could obtain any relief against this person as the judgment-debtor, they would, of course, be entitled to do so. But in the absence of any provision, because so far as the Small Cause Court is concerned there is no power of review granted, and this cannot be regarded as a case where there was merely a clerical mistake in the decree or any differenee between the judgment and the decree--no such power could possibly have been exercised. That difficulty of the learned Chief Justice Aeems to have been contentions of the defendant, it might be that the amendment of the decree would have the effect really of passing a decree against a person who had no notice of the suit or who had not had an opportunity afforded him of defending the action. No doubt, it is also now admitted that the defendant did not apply for setting aside the decree passed in the case ex parte. One can easily understand the reason. He put himself in the position where he was really unable to do it, because his contention was that the1 A.R. Devaraya Reddy mentioned in the decree was a person entirely different to himself and, therefore, he could not with any seemliness say that he was the real defendant and come and apply to have the ex parte decree set aside. In those circumstances, and no doubt without a formal application by the defendant, the learned Judge has set aside the decree and the question is whether this Court on this petition should interfere with that order. All that the provisions in the Small Cause Court procedure require for setting aside a decree ex parte at the instance of the defendant is an application for the purpose setting out the necessary ground. The necessary grounds had been set out by the present petitioner in the affidavit filed by him to the effect that he did not know of the suit, that he was not properly servd, that he did not know of the decree, and so on. On those facts the learned Judge was clearly entitled, even though there was no formal written application before him, to set aside the decree passed ex parte, finding that on account of the defect m the description of the defendant tfeere was no proper service of the summons on the defendant. Whatever might be thought of the view that at one time prevailed that the Court had an inherent power to set aside such decrees, suo motu, without any reference to any application or bar of limitation, still when the materials were placed before the J udge, and he was satisfied that the facts were as dated above, and the learned Judge found that, having regard to the peculiar nature of thb objection raised by the defendant, he had put himself out of Court so far as the petition for setting aside the ex parte deeree was concerned, he was entitled to treat the real substance of the objection taken on behalf of the petitioner as an objection to the decree passed ex parte and set aside the same. I have, therefore, come to the coaclusion that on the materials before the learned Judge he was entitled to treat the objections taken on behalf of the petitioner as an application really for setting aside the ex parte decree and I have no doubt whatever that the learned Judge not only had power to doit but thathe exercised very properly the discretion vested in him.

(2.) Then as regards the other objection made by the learned Vakil for the petitioner, namely, that it virtually amounts to allowing the plaintiff to amend the plaint in such a manner as to make it a suit against a different party in the same maimer and to the same extent as if that new party was added as party defendant on the day on which the amendment comes to be made and the inability that would be consequent thereon of the added defendant not being able to plead the bar of limitation to which he is clearly entitled, it is necessary to state only this. It is clear from the record that the present plea of the defendant, the present petitioner, is that he was not a party to the dealings at all and had nothing to do with the plaintiff. If as a result of the enquiry it should be found that the original suit as instituted was against a different person and that the person substantially stated and described as defendant in the original plaint and the proceedings thereto, was not this person now before the Court, then, of course, the Court will be bound to give effect to it and dismiss the suit on the ground that the suit against this present defendant now before the Court had not been properly instituted within the time allowed by the Law of Limitation. But if, on the other hand, the Court should come to the conclusion that the suit as originally instituted was not against a different person, but it was a case of the plaintiff's having had in mind already and substantially pursuing the claim only against this identical person, then it follows that the description of the defendant in the plaint was a mere error in the initials, a slight mistake it may be in the spelling, it often is, in the residence or the father's name and so on, which really is a misdescription only, and such a misdescription cannot possibly be regarded as going to the root of the thing and disturbing in any way or to any extent the ind entity of the person constituted as the dsfendant by the plaintiff. I am not, therefore, at present deciding any matter with regard of limitation. If it was clear on the proceedings now under revision that the party now added was a new party as contended for by Mr. Seshachellam, I should certainly not have had any hesitation in holding that the Court had no power to add any such party. But the very basis on which the learned Judge has proceeded is that it is the same identical person and there was only a misdescription by him. If that be so, there is no question of adding a new party at all.

(3.) I have, therefore, come to the conclusion, and I am not sorry to have come to that conclusion having regard to the contentions raised on behalf of the petitioner, that the order of the learned Judge was right and the justice of the case does not call for any interference on the part of this Court. The petition is, therefore, rejected and is dismissed with costs.