SURAJMAL Vs. RAGHUNATH

JUDGEMENT

(1.) 1. The plaintiff Chandanbai sued the defendants for possession of a one-anna malguzari share of mauza Panjra Gondi. That suit was dismissed on 10th April 1926. An appeal was filed on 16th June 1926, in the name of the plaintiff Chandanbai who had, however, died on 22nd May 1926. On 24th September 1926, the pleader for the respondents brought this fact to the notice of the lower appellate Court, the fact being admitted by the pleader for the appellant who stated that the name of Chandanbai had been inserted in the memorandum of appeal through an accidental mistake, the appeal really having been filed by Chandanbai's two sons. It was argued for the respondents that the appeal being filed in the name of a dead person, abated. The lower appellate Court, following the case of Veerappan Chetty v. Tindal Ponnam [1908] 31 Mad. 86 which, deals with a suit against a deceased person dismissed the appeal with costs.

(2.) IT is here contended that the intention was to bring the appeal in the name of Chandanbai's heirs who gave a power-of-attorney to the pleader who filed the appeal, but that by a clerical error the name of the original plaintiff was entered as the appellants and the present appellants ask for permission to correct the misdescription. Reliance is placed on Manjula v. Shankar [1915] 10 N.L.R. 144 a case which, in my opinion, does not apply. Another case quoted is Bakaram v. Hiralal A.I.R. 1923 Nag. 96 a case of a misdescription of a plaintiff. In that case the managers of a temple filed a suit when the temple itself was the real plaintiff. It was held that the omission to mention the temple in the heading was merely a mistake in the description of the plaintiff and that no question of limitation arose when that description was corrected. It is difficult to see how the decision in that case applies to the facts of the present case, the appeal here having been brought in the name of a plaintiff who is dead. Other cases quoted are Saraspur Manufacturing Co. Ltd., v. B. B. & C. I. Ry. Co. A.I.R. 1923 Bom. 452 and Nanak Chand Mukandi Lal v. East-Indian Ry. A.I.R. 1925 Lah. 441. These are two cases where the agent of a railway was sued as such, while the case was against the railway itself. They again do not apply to the circumstances of the present case.