HALAR SALT AND CHEMICAL WORKS Vs. SAIGA AND CO EXPORTS
LAWS(GJH)-1966-4-12
HIGH COURT OF GUJARAT
Decided on April 04,1966

HALAR SALT AND CHEMICAL WORKS Appellant
VERSUS
SAIGA AND COMPANY(EXPORTS) Respondents

JUDGEMENT

P.N.BHAGWATI, M.U.SHAH - (1.) This appeal is directed against a decree passed by the Civil Judge Senior Division Jamnagar dismissing the plaintiffs suit on the ground that it is barred by the law of limitation. The facts giving rise to the appeal are a little important and it is necessary for the purpose of appreciating the contentions raised in the appeal to notice them in some detail. The plaintiffs who are a partnership firm carrying on business of manufacturing salt in Jamnagar entered into a contract dated 29th November 1961 with a firm named Saiga and Company (Exports) for sale of 7 0 tons of salt at the rate and on the terms and conditions set out in the contract. The contract was in the form of a letter addressed by Madhavji Vashram and Company on behalf of the plaintiffs to Saiga and Company (Exports) and confirmed by Saiga and Company (Exports) by appending their signature at the foot of the letter. The plaintiffs were ready and willing to carry out their part of the contract but Saiga and Company (Exports) according to the plaintiffs committed a breach of the contract by refusing to pay for and take delivery of the goods under the contract. The plaintiffs therefore addressed a notice dated 26th April 1959 to Saiga and Company (Exports) calling upon Saiga and Company (Exports) to take delivery of the goods but Saiga and Company (Exports) failed to take such delivery and the plaintiffs were constrained to resell the goods on account and at the risk of Saiga and Company (Exports). The resale resulted in a loss of Rs. 55 0 and the plaintiffs therefore after giving notice to Saiga and Company (Exports) filed a suit being Civil Suit No. 359 of 1952 in the Court of the Civil Judge Senior Division Jamnagar to recover a sum of Rs. 56 712 being the amount of the loss together with interest thereon at the rate of six per cent per annum from 26th April 1952 upto the date of the suit. Now the party with whom the contract was entered into by the plaintiffs and from whom the plaintiffs were entitled to recover damages for breach of the contract was Saiga and Company (Exports) which was a firm consisting of three partners namely B. C. Mody N. S. Patel and Vrajlal T. Somani which had its place of business at 134/36 Zaveri Bazaar Bombay-2 but it appears that there was also at this time another firm carrying on business in the name of Saiga and Company which consisted of B. C. Mody and N. S. Patel being two of the partners of Saiga and Company (Exports) and this firm had its place of business at 105 Apollo Street Bombay-1. The plaintiffs were presumably unaware that Saiga and Company and Saiga and Company (Exports) were two distinct firms and having regard to the printed letter papers of Saiga and Company (Exports) which mentioned the words Saiga and Company in bold print in one line and the word Exports below In small print the plaintiffs carried the impression that there was only one firm namely Saiga and Company and the word Exports merely indicated a branch of that firm and the true name of the contracting party was therefore Saiga and Company and being under that impression the plaintiffs described the defendant in the title of the plaint as Saiga and Company instead of Saiga and Company (Exports). The plaintiffs however gave the address of the defendant as 134/36 Zaveri Bazaar Bombay-2 which was the correct address of Saiga and Company (Exports). The plaintiffs also made it clear in paragraph 9 of the plaint that the partners of the defendant firm sued in the plaint were B. C. Mody N. S. Patel and Vrajlal T. Somani. Since the defendant was described in the title of the plaint as Saiga and Company the writ of summons was also issued in the name of Saiga and Company but it was served at 134/36 Zaveri Bazaar Bombay-2 and curiously enough though it was addressed to Saiga and Company it was accepted by Saiga and Company (Exports). Though the writ of summons was accepted by Saiga and Company (Exports) and the body of the plaint made it abundantly clear that it was Saiga and Company (Exports) consisting Of B. C. Mody N. S. Patel and Vrajlal T. Somani as partners and having its place of business at 134/36 Zaveri Bazaar Bombay-2 which was intended to be sued none on behalf of Saiga and Company (Exports) filed an appearance but an appearance was filed on behalf of Saiga and Company by its Manager G. C. Desai. Saiga and Company thereafter filed its written statement in answer to the plaint and after making a bald and cryptic denial of privity of contract with the plaintiffs proceeded to deal with the plaint on merits. Saiga and Company did not prefer to clarify in the written statement that there were two distinct firms one named Saiga and Company and the other named Saiga and Company (Exports) and that the contract being with Saiga and Company (Exports) and not with Saiga and Company Saiga and Company had no privity of contract with the plaintiffs. On these pleadings issues were framed and one Govindji was thereafter examined as a witness on behalf of the plaintiffs. It was during the cross-examination of Govindji that a clear suggestion was made for the first time by Saiga and Company that Saiga and Company and Saiga and Company (Exports) were two different firms. The plaintiffs thereupon made the necessary inquiries and learnt that Saiga and Company (Exports) was a different firm from Saiga and Company and they accordingly made an application for amendment of the plaint by substituting Saiga and Company (Exports) for Saiga and Company as defendant. The application was made on 5th March 1956 and the ground on which the application was based was that the plaintiffs were not aware that Saiga and Company (Exports) and Saiga and Company were different firms and they were under the impression that Saiga and Company was the true name of the firm with which they had entered into the contract the word Exports being merely indicative of a branch and it was under this impression that they had filed the suit against the defendant in the name of Saiga and Company but since the true name of the firm with which they had entered into the contract was Saiga and Company (Exports) this technical mistake in regard to the description should be allowed to be corrected and the name of Saiga and Company (Exports) should be substituted for Saiga and Company as defendant. The application was resisted by Saiga and Company but the learned trial Judge by an order dated 24th November 1958. granted leave to amend the plaint and pursuant to the said order the plaint was amended by substituting Saiga and Company (Exports) for Saiga and Company in the title of the plaint and a copy of the amended plaint was filed by the plaintiffs on 6th January 1959. The writs of summons were thereafter issued on the amended plaint and they were served on the three partners of Saiga and Company (Exports) and each of them filed a separate written statement in answer to the plaint. Fresh issues were thereafter raised by the learned trial Judge and one of the issues was whether the suit was barred by the law of limitation. The learned trial Judge on the application of Saiga and Company (Exports) decided to try the issue of limitation as a preliminary issue since it was a pure issue of law and if decided against the plaintiffs would be sufficient to dispose of the suit in its entirety. The plea of limitation was raised by the partners of Saiga and Company (Exports) on the basis that the amendment of the plaint made pursuant to the Judges order dated 24th November 1958 had the effect of substituting Saiga and Company (Exports) as a new defendant who was not on record prior to the making of the amendment and that sec. 22 of the Limitation Act was therefore applicable and the plaint must be deemed to have been instituted on the date on which the amendment was made adding Saiga and Company (Exports) as a new defendant. The plaintiffs however urged that the three partners of Saiga and Company (Exports) were parties on record in the suit right from the inception and that they were merely mis-described by calling them Saiga and Company and the amendment did no more than correct this misdescription by describing them correctly as Saiga and Company (Exports) and there was accordingly no question of the applicability of sec. 22 of the Limitation Act. The learned trial Judge however took the view that the effect of the amendment was to substitute Saiga and Company (Exports) as the new defendant in place of Saiga and Company which was the original defendant in the suit and that the suit against Saiga and Company (Exports) was therefore barred by the law of limitation. The learned trial Judge in this view of the matter dismissed the suit with costs. Hence the present First Appeal by the plaintiffs.
(2.) The principal point which arises for determination in this appeal is as to the true nature and effect of the amendment made in the title of the plaint pursuant to the Judges order dated 24th November 1958. The argument urged on behalf of Saiga and Company (Exports) was and that was the argument which found favour with the learned trial Judge that the suit was originally against Saiga and Company and by reason of the amendment Saiga and Company (Exports) was substituted as a new defendant in place of the old and therefore sec. 22 of the Limitation Act was attracted and the plaint must be deemed to have been instituted against Saiga and Company (Exports) at the date when the amendment was made substituting Saiga and Company (Exports) as the new defendant and since at that date more than three years had elapsed since the date of the breach of the contract the suit against Saiga and Company (Exports) was barred by the law of limitation. Now it is no doubt true and it cannot be disputed that if the original defendant in the suit was Saiga and Company and the amendment had the effect of substituting Saiga and Company (Exports) as the new defendant which was not on record before sec. 22 of the Limitation Act would apply and despite the amendment the suit would have to be held to be barred by limitation. But contended Mr. Rawal on behalf of the plaintiffs that was not the correct way of looking at the amendment. The proper view to take of the amendment he argued was that the three partners of Saiga and Company (Exports) were already on record in the suit from the inception but they were wrongly described in the title of the plaint as Saiga and Company and this defect or mistake in the description was corrected by the amendment by substituting the firm name of Saiga and Company (Exports) for the firm name of Saiga and Company. The case was the argument ran one of misnomer or misdescription of an existing party and not of substitution of a new party inviting the operation of sec. 22 of the Limitation Act and the suit which was within the period of limitation when originally filed was therefore not affected by bar of limitation by reason of the amendment. These contentions raised the question as to who was the defendant in the suit as originally filed if the defendant was Saiga and Company consisting of two partners namely B. C. Mody and N. S. Patel the amendment would amount to substitution of Saiga and Company (Exports) as a new defendant and the suit against Saiga and Company (Exports) would be barred by the law of limitation; but if the three partners of Saiga and Company (Exports) namely B. C. Mody N. S. Patel and Vrajlal T. Somani were the real defendants in the suit and Saiga and Company was a mere misnomer or misdescription of these defendants the amendment would amount only to correction of the misdescription for the purpose of indicating clearly and properly the real defendants who were already on record and the suit would be within time.
(3.) Now in order to determine who is the defendant in a suit it is not enough to look merely at the description of the defendant given in the title of the plaint. It is no doubt true that Order 7 Rule 1 enjoins that the plaint shall contain the name and description of the defendant so far as they can be ascertained and ordinarily as is apparent from Appendix A in the First Schedule to the Code of Civil Procedure the name and description of the defendant would be set out in the title of the plaint. But it must be remembered that the title is only one part of the plaint and no undue weight or importance can be attached to any one part of the plaint for the purpose of ascertaining who is the defendant sued in the plaint. The plaint must be regarded as a whole and it must be determined on a fair reading of the plaint taken as a whole in all its constituent parts as to who is the defendant against whom the suit is filed by the plaintiff. It may be that the title of the plaint may through some error or mistake not contain the correct name and description of the defendant but if it is clear on a fair and reasonable reading of the plaint as a whole that the defendant sued in the plaint is a particular person the misnomer or misdescription of such person in the title of the plaint cannot be allowed to defeat the true intent of the plaintiff as appearing from the rest of the plaint. Falsa demonstratio non nocet (mere false description does not vitiate a document if there is sufficient certainty as to its contents) and Nihil facit error nominis cum de corpore constat (an error of name is nothing when there is certainty as to the person). The Court would in such a case unhesitatingly declare that the person who on a fair and reasonable reading of the plaint as a whole appears to be the defendant sued in the plaint is the real defendant and correct the name or description of such person in the title of the plaint by introducing his correct name or description. Where the Court does so the Court does not introduce a new party on the record but the Court merely finds that a particular person is the real defendant sued in the plaint but through an error or mistake the name in the title of the plaint does not correctly describe such person and the Court therefore permits an amendment for the purpose of introducing the correct name or description of such person. There is in such a case no question of substitution or addition of a new party to the suit nor is there any question of taking away from the defendant any right accrued to him by lapse of time. This position is incontrovertible on principle and was indeed not controverted by the learned Advocate General appearing on behalf of Saiga and Company (Exports). There is in fact abundant authority in support of it and we may mention only two decisions one being a decision of the Madras High Court in Mohideen v. V.O.A. Mohomed A. I. R. 1955 Madras 294 and the other being a decision of the Calcutta High Court in Purushottam & Company v. Manilal and Sons A.I.R. 1960 Calcutta 15 confirmed on appeal by the Supreme Court in the case reported under the same title in A. I. R. 1961 S. C. 325.;


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