Chakravartti, C.J. - (1.) This is an appeal from an order of P. B. Mukharji, J., dated 22/6/1955, by which the learned Judge allowed an amendment of the respondent's plaint. By that amendment, the original defendant in the respondent's suit, Which was shown as a firm, was converted into a company of the same name. The appellant before us which is the company so substituted as the defendant, complains that the amendment took away from it a valuable right which had accrued to it by efflux of time and, therefore, it ought not to have been allowed, particularly since-there were no special circumstances in the case entitling the respondent to the indulgence.
(2.) The facts are as follows. The respondent is a firm, said to be carrying on business as a supplier of marbles and other flooring materials as also a contractor doing marble, mosaic and other flooring work. On 23/11/1953, the respondent instituted a suit on the Original Side of this Court for the recovery of a sum of Rs. 5,989-13-6 for work done and labour and materials supplied against "M. B. Sarkar & sons, a firm carrying on business as jewellers at Nos 167 and 167C, Bowbazar Street. Calcutta." The plaint stated that the work had been done for the defendant firm and the materials had been supplied to it under orders placed by the firm through one of its partners, one Gostha Behary Sarkar. The plaint proceeded to state that the value of the work done and the materials supplied was Rs. 7,989-13-6 of which a sum of Rs. 2,000 had been paid by four several cheques, leaving as the balance outstanding the amount claimed in the suit. The relief asked for was in the usual alternative forms, that is to say, besides asking for a decree for a specified sum, the plaintiff also asked in the alternative for an order for accounts and, In the further alternative, a decree for damages or compensation. The plaint stated that the work had been commenced on 12/10/1950 and had been completed "in or about April- May, 1951." It is thus clear that any suit brought on that cause of action after May, 1954, would be barred by time.
(3.) On the same day that it filed its plaint, the Solicitors for the plaintiff respondent addressed a letter to Messrs B. N. Easu & Co., another firm of solicitors practising in this Court, and enquired of them whether they would accept service of the Writ of Summons on behalf of the defendant firm. It is stated that not having received any reply, the respondent caused certain searches to be made in the office of the Registrar of Firms and ascertained thereform the names of the firm's partners. That was on 20/1/1954. Thereafter, on 3/2/1954, the respondent obtained an order from the Master for an extension of the returnable date of the Writ of Summons and also leave to serve the writ on one Pulin Behary Sarkar, as one of the partners of the defendant firm and or the preson in charge of the control and management of the firm's business. The Writ of Summons was actually served on Pulin Behary Sarkar on 19/2/1954. There can thus be no doubt that the respondent was proceeding on the footing that the defendant it had sued was a firm.;