BHAGIRATH SINGH Vs. MUNGA LAL

JUDGEMENT

(1.) This is an application for revision of the order of the Small Cause Court, Judge at Gaya decreeing a suit which was based on a handnote. The plaintiffs were a Hindu father and son who do business in their joint names and they described themselves in their plaint by their two names with the addition of the word "firm". It appears from the evidence that these two persons alone are doing business and they are presumably a joint family, so that strictly speaking the provisions of Section 5, Partnership Act, would make their description as a firm incorrect. The objection was taken that this firm was not registered, whereupon the plaint was amended by the deletion of the word "firm" in the description of the plaintiffs. Objection is now taken on behalf of the defendants that this amendment was made after limitation had expired, so that the provisions of Section 22; Limitation Act, would seem to bar the plaintiff's suit.

(2.) Their description originally as members of a joint family would hot bar an alternative or substituted claim from them as partners: Bishamberdas V/s. Brijlal Arora A.I.R (1931) Bom. 590 and in this case the original description of the two plaintiffs as partners is a mere misdescription, and it is no addition of parties within the meaning of Section 22, Limitation Act, when the word "firm" is, deleted and they sue as members of a Hindu family. It appears that although they mighty in a sense be described as a firm without any offence against the English language, they are not a firm in the sense in which the word is used as a word of art in the Partnership Act. In the second place it is pointed out by the learned Counsel for the petitioners that the learned Small Cause Court Judge erred in declining to compel the plaintiffs to furnish particulars before the defendants entered upon their defence.

(3.) The plaint alleged that the loan had been advanced to the defendants family for valid family necessity. The defendants applied for particulars of the facts constituting the necessity, but the plaintiffs pleader objected that this would be furnishing details of evidence which he was not required to do; and the learned Small Cause Court Judge permitted this objection to prevail and the defendants filed their written statement without having the required particulars from the plaintiffs. The learned Small Cause Court Judge was in error on this point; he ought to have compelled the plaintiffs to furnish particulars or to have struck out so much of the claim as rested upon the proof of valid family necessity.