MODI, J. - (1.) THIS is an appeal by the plaintiff Naharmal in a suit for money based on a Khata which was decreed by the trial court but on appeal dismissed by the Civil Judge, Alwar by his judgment dated the 18th June, 1956.
(2.) THE facts necessary for the determination of this appeal may be stated very shortly. THE plaintiff's case as disclosed in the plaint, originally, was that the suit Khata was executed by the defendant Rameshwar Lal on behalf of himself and his brother Hazarilal on the 19th February, 1950, after having gone into old accounts wherein he found a sum of Rs. 1497/-as balance due to the plaintiff, and further that although the name of Hazarilal appeared in the heading of the Khata, in had not been signed by him and therefore he (Hazarilal) bad been left out of the suit. This plaint was filed on the 17th February, 1953. On the 19th March, 1953 the plaintiff moved an application to the effect that the person who had really signed the Khata was Hazarilal and not Rameshwarlal and therefore the name of Hazarilal be allowed to be substituted for that of Rameshwarlal and an amendment of the plaint was prayed for accordingly. THE amendment was allowed and Hazarilal was brought on record and Rame-shwarlal's name was struck off. When Hazarilal thus came to be impleaded as defendant, he filed his written statement on the 7th September, 1953 wherein he inter alia contended that the suit was barred against him by limitation. THE trial court held that the case was one of misdescription under O. 1, Rule 10 (2) C. P. C. and therefore the name of the defendant could have been brought on record at any stage of the case and as such the suit was within time. THE suit was decreed ex parte as defendant Hazarilal did not take any interest in this litigation after filing his written statement. THE defendant then went in appeal to the Civil Judge, Alwar, who allowed the appeal and dismissed the plaintiff's suit on the ground of limitation. THE reasoning of the learned Judge was that the alteration made in the plaint by removing the name of Rameshwarlal and putting in that of Hazarilal instead was not a matter of mis-description but amounted to substitution of one person by another and in that view of the matter he held that when the application for amendment was submitted it was barred by time and therefore the suit should be deemed to have been brought against Hazarilal at the earliest when the application for substitution was made and not before and consequently the same must be dismissed on the ground of limitation. Aggrieved by this decision, the plaintiff has now come up in second appeal to this Court. The sole question for determination in this appeal is whether the amendment asked for and allowed to be made in the plaint which has been referred to above properly falls under the category of misdescription within the meaning of O. 1, r. 10 (2) or amounts to substitution of one defendant for another within the meaning of sub-rule (5) of that rule. Learned counsel for the plaintiff has referred me to Muhammad Yusuf Vs. The Himalaya Bank Limited (1), Narayana Sastrigal Vs. Mangalathammal (2), Jogendra Narain Roy Choudhury Vs. P. J. Forbes (3), Saraspur Manufacturing Company VS. B. B. and C. I. Railway Company (4), Nanak Chand Mukandilal Vs. Est Indian Railway (5), T. V. Devaraja Reddiar Vs. Liptons Limited (6), Amulakchand Mewaram Vs. Babulal Kanalal Talwala (7) and Municipal Commissioners, Dacca Vs. Gangamani Chaudhurani w/o Akshey Kumar Basak (8), in support of his submission. On the other hand, learned counsel for the plaintiff relies on East Indian Railway Company Vs. Ramlakhan Ram (9), Jawala Das Vs. Gopallal and Desraj (10), Agent, Bengal Nagpur Railway Vs. Beharilal Dutt (11), The Northern Bank of India Ltd. Vs. Ramesh Chandar (12), Krishnaji Shivaji Pawar Vs. Hanmaraddi Mallaraddi Maidur (13), Mangharam Rupchand, Firm Vs. Haji Sorik Punhoo (14), Gowarjabai w/o Chandanmal Maheshwari Vs. Ganpatsa Vithusa Teli (15), State of Bihar Vs. West Bokaro Ltd. (16) and Madho Singh Vs. Union of India (17 ). It may be pointed out atonce that in the last mentioned case the suit was filed against Mr. Rawlins, General Manager, Jodhpur Railway, Jodhpur in the first instance, and on an objection having been raised by him that the suit as filed was not proper he being not the owner of the Jodhpur Railway, the plaint was amended, and the General Manager, Jodhpur Railway, was substituted in his place and later 'marwar Durbar' was allowed to be substituted for the General Manager, Jodhpur Railway, and eventually Union of India came to be substituted. A Bench of this Court consisting of Wanchoo C. J. and Dave J. held that the substitution of Mr. Rawlins by the Manager, Jodhpur Railway, or by the Marwar Durbar amounted to bringing these persons, for the first time, on record when they were so brought, and that as this was done long after the period of limitation was over, it could not but be held that the suit either against the Jodhpur Railway or against the Marwar Durbar was barred by limitation. The ratio of the decision was that this was not a case of mere misdescription but that of substitution of one defendant by another. The present case, though its facts are different, appears to me to be governed by the principle of that case and, therefore, I do not consider it necessary to deal at length with the other cases to which my attention has been drawn by the learned counsel, though, with all respect, I cannot help pointing out that it is not easy to reconcile the views which have been adopted in many of these cases. All of them are, however, agreed on the principle that where the alteration amounts to a mere misdescription of the defendant, then such misdescription can be corrected at any time, and the plea of limitation will not help the defendant who was so mis described. The difficulty that arises however is in the actual application of this principle or, in other words, how to demarcate the precise boundary line between what is misdescription and what is substitution. As I look at the matter, a case of misdescription occurs where e. g. a defendant is intended to be sued from the very beginning, but, let us suppose, his surname is wrongly mentioned, or a wrong parentage is given, or a similar mistake in the matter of age or residence occurs, or yet, to quote another instance, a person is mentioned as Mr. A instead of Miss A due to sheer clerical error. In other words, the person who is sought to be sued is throughout the same, but the only flaw is that he has been mis described or described wrongly. Similarly where a relief is originally claimed by or against a party such as an idol, a minor, or a corporation which is said to be represented by same person, the proper representation of that party is essentially a question of description of the party really suing or who has been sued and does not amount to admission of a new party. A different situation however arises where one person has been sued in the first instance and another person is sought to be substituted in his place. Be the reasons what they may for such substitution, such a case cannot be considered to be one of mere misdescription but, in its substance, amounts to substitution of one person by another. Thus it was held in E. I. Rly. Co. Vs. Ram Lakhan Ram (9) that when there are two known persons in existence and the plaintiff brings the suit against one of them and afterwards applies to have the other brought on the record as a defendant on the ground that he all along intended to sue the other and that in substance he had sued the other, and no question of representation arose in such a case, it was impossible to maintain the view that the case was one of misdescription. The facts in The Northern Bank of India Ltd. Vs. Rameshchander and another (12) were that in a suit on a pro-note executed by two persons, the plaintiff impleaded as defendants one of the executants and the widow of another (he having died in the meantime ). The widow denied that she was the legal representative of her deceased husband and so the name of the minor son of the deceased was allowed to be substituted in her place, but after the period of limitation for the suit had expired. The question arose whether it was a case of mere misdescription, or of substitution. It was held that it was not a case of misdescription, and the correct legal position was that a wrong person was impleaded in the first instance and not that the right person was impleaded under a wrong description. The learned Judges (Shadi Lal, C. J. and Hilton, J.) therefore held that the circumstance that such a mistake might have been made bonafide was immaterial, and even if the mistake was made honestly and not deliberately, that fact would not avail the plaintiff for the purpose of saving limitation. It was further pointed out in this case that the question of a bonafide mistake may properly arise only under sub-rule (1) of O. 1, R. 10, and not under sub-rule (2 ). With all respect, I am disposed to think that these cases bring out the true import or effect of O. 1, R. 10 (2) read with sub-rule (5) thereof, and I would accept them as laying down the correct law in the class of case I have before me. Let us see how the law as discussed above applies to the instant case. The plaintiff here sued Rameshwarlal in the first instance. He did so mistakenly thinking that the executant of the Khata in suit was that person and not his brother Hazarilal. This mistake was later discovered and he applied for amendment of the plaint so as to implead Hazarilal in place of Rameshwarlal. The amendment was admittedly applied for after the limitation for the suit had expired. The question is whether this was a case of a mere misdescription of the defendant who was sought to be sued. On a most careful and anxious consideration of this question, I regret I have come to the conclusion that this question must be answered against the plaintiff. It is not a case of a right person having been mis described. On the other hand it seems to me to be clearly a case of one distinct person being sued wrongly for another. It is true that the mistake was perhaps due to the misreading of the Khata which is said to have been written in "mudiya" script which is notoriously ill written. But even so it will be going too far to say that the defendant was really mis described in this case. And the true answer in point of fact must be that there were two known persons in existence and that one of them was sued to start with, and that thereafter the other person was sought to be substituted in his place, the substitution having been rendered necessary by an unfortunate misreading of the document on which the suit was founded. The mistake may have been bonafide but all the same it is not an error of misdescription that was sought to be corrected in this case, and the error was more fundamental inasmuch as the person who was wrongly sued in the first instance was given up and another distinct person was brought in his place as defendant. To my mind, an error of this type falls in the area of the substitution of one person by another rather than the correction of a misdescription of the person who was sought to be sued from the very start. I hold accordingly. If that is the correct conclusion to come to on the point in controversy, as I think it is, then sub-rule (5) of O. 1, R. 10 is clearly attracted in the present case and that reads as under; - "o. 1, R. 10 (5) - Subject to the provisions of the Indian Limitation Act, 1877, sec. 22, the proceedings as against any person added as defen dant shall be deemed to have begun only on the service of the summons. " The relevant portion of sec. 22 of the Indian Limitation Act reads as follows: - "where after the institution of a suit, a new plaintiff or defendant is substituted or added the suit shall, as regards him, be deemed to have been instituted when he was so made a party. " The position, therefore, to which we are driven is that the suit against Hazarilal must be held to have been instituted on the date of the service of the summons on him and that was obviously beyond time. The result is that the conclusion to which the learned Civil Judge came was correct and this appeal must accordingly be dismissed. Having regard to all the circumstances of the case, however, I would leave the parties to bear their own costs throughout. .;