Dave, J. - (1.) THIS is a first appeal by the defendant Birbal against the judgment and decree of the Civil Judge, Ganganagar, dated 30th April, 1952.
(2.) THE facts giving rise to it are that on the 1st March, 1950, two of the respondents viz. Thammansingh and Sherbahadur brought a money suit for Rs. 7,400/- on the basis of two bonds Ex. P-1 and Ex. P-2, in the court of the Civil Judge, Ganganagar. THE other two respondents Thakursingh and Kartarsingh were impleaded as defendants. On the 20th March, 1950, respondents Nos. 3 and 4 pre-sented an application to be transposed as plaintiffs. That application was allowed by the Court and show they were transposed as plaintiffs. THE only defendant then left was the present appellant Birbal. Birbals's reply in the trial court was that both the documents on which the suit based were not executed by him and that they were without any consideration. It was further pleaded that the rate of interest claimed by the plaintiffs was penal, that the suit suffered from the defect of multifariousness, that it was time-barred and therefore it should be dismissed. THE trial court framed the following five issues: (1) Whether the documents, Ex. P-l and P-2 sued upon were executed by defendant Birbal and he is liable to pay their amount? (2) Whether the plaintiffs were entitled to bring the suit for the whole amount? (3) Whether the suit was not maintainable since the claim was founded on two documents and therefore, there, was defect of multifariousness? (4) Whether the suit was time-barred? (5) Whether the interest claimed was penal and if so, what rate of interest the plaintiffs were entitled to get? All the issues were decided by the trial court against the defendant and the entire suit for Rs. 7400/- was decreed with costs. Appellant's learned advocate has abandoned the objection about the multifariousness of the suit in this Court. He has questioned the correctness of the decision of the trial court only on the remaining four issues. The first point for the consideration of this Court, therefore, is whether Ex. P-l and P-2 were executed by the appellant and whether they were without any consideration. It appears from the record of the trial court that the plaintiffs examined P. W. 1 Mangilal, who is the scribe of both the documents, and also P. W. 2 Nanuram and P. W. 3 Partap Singh who are attesting witnesses of both the documents. P. W. 1 Mangilal has stated that both Ex P. 1 and P. 2 were written by him at the request of the appellant Birbal and that he had affixed his thumb impression on both of them in his presence. He further says that he had read out both the documents to the appellant and the appellant had admitted that he was liable to pay Rs. 1500/- and Rs. 2200/-for both the documents. Similarly P. W. 2 Nanuram and P. W. 3 Pratap Singh have stated that the appellant had admitted before them that he owned an ancestral debt obtained by his father from the respondents for Rs. 1500/- that he had further borrowed Rs. 2200/-from the respondents for his son's marriage and that the appellant had affixed his thumb impression on both the documents in their presence. The witness further says that the documents also bear their thumb impressions. All the three witnesses were cross-examined at leant by appellant but their evidence has remained unshaken. One of the plaintiffs vis. Thakursingh has also appeared in the witness-box and he has also stated that both the documents were executed by the defendant and that they were with consideration. Learned counsel for the appellant has attacked the statement of Thakursingh on the ground that in his examination-in-chief he has stated that Rs. 2200/- were given in cash to the defendant on the same day on which the document for that sum was executed. It is urged that the document itself shows that Rs. 2200/- were not given in cash on the day of its execution and therefore, no reliance should be placed on this witness. It is contended that this on the other hand shows that the document is without consideration and Rs. 2200/- were never advanced to the appellant. This argument is not correct because in the same statement the witness corrected the error which had crept in on account of some slip or loss of memory and has stated that Rs. 2200/- were given in cash 4 or 5 days before the execution of this document. While the plaintiffs has thus proved the execution both the documents and also the consideration. It is significant that the defendant has not produced any evidence in rebuttal. He has not even examined himself and therefore a mere denial on his part is of no avail. One more argument advanced by appellant's learned advocate in this connection is that both the documents bear the appeal-lant's thumb impressions only on the first page and therefore it should be held that they were not properly executed by him. In our opinion this argument is also without any force because the relevant facts regarding both the transactions appears on the first page in both the documents. It appears that the thumb impressions were not obtained on all the pages because of some such practice prevailing in that area. In the case of J. &. D. Eziekeil Co. vs. Annoda Charan Sen (l) it was held following the cases of Johnson vs. Dodgson (4) and Caton vs. Caton that: - "the insertion of the name in any part of the writing, in a manner to authenticate the instrument, is sufficient. Although the signature be in the beginning or middle of the instrument, it is as binding as if at the foot of it. The question always is, whether the party, not having signed it regularly at the foot, yet meant to be bound by it as it stood, or whether it was left' so unsigned because he refused to complete it; but when it is ascertained that he meant to be bound by it as a complete contract, the signature is, for purposes of execution, effective. " In the present case it was not pleaded by the appellant that he had left the other pages unsigned for certain reason like incom-pletion of the contract. On the other hand it has been proved by the respondents that both the documents were executed at the appellant's instance and attested at his direction and therefore, mere fact that the appellant did not affix this thumb impressions on other leaves is of no material consequence. This objection, therefore, is also fit to be dismissed. The next question raised by appellant's learned advocate is that of limitation. It is contended by him that in both the documents the appellant had specifically mentioned that he was liable to pay two-thirds of the total amount of loan to Thammansingh and Thakursingh in equal shares and the remaining one-third portion of the loan to Kartarsingh and Sherbahadur in equal shares. It is urged that in other words Thammansingh and Thakursingh had each advanced one third amount of the loan separately and similarly Kartarsingh and Sherbahadur had each advanced one-sixth share of the loan separately and therefore, the appellant could also be liable to repay them the same amount separately in the manner pointed out above. According to learned counsel for the appellant there were in fact four transactions between the appellant and the four respondents and Thammansingh and Sherbahadur, therefore, could not bring the suit for the entire amount of both the documents. It is urged that Thakursingh and Kartarsingh did not join Thammansingh and Sherbahadur at the time of the institution of the suit. At that time they were only defendants. They were transposed as plaintiffs when their claim had already become time-barred and therefore, the claim for at least half the amount was beyond limitation. Learned counsel for the respondents has on the other hand urged in reply that the respective shares of the respondents were mentioned in both the documents only for the convenience of the respondents so that there may be no difficulty in distributing the amount between them when it was. repaid According to him the appellant's responsibility towards respondents was joint and several and, therefore, even two respondents viz Kartarsingh and Thakursingh were impleaded as defendants from the very beginning and since they were transposed as plaintiffs the question of limitation did not arise in view of sec. 22 (2) of the Indian Limitation Act. The determination of the question of limitation in the case rests upon the interpretation of sec. 22 of the Indian Limitation Act,, It runs as follows - "sec. 22 - (1) 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. (2) Nothing in sub-sec. (1) shall apply to a case where a party is added or substituted owing to an Assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff. " Learned advocate for the appellant has urged that sub-sec. (2) of the said section can be availed of, only in cases where the plaintiff and the defendant have a joint cause of action. According to him, each one of the respondents had a separate cause of action in respect of the specific amount of loan which each one of them had advanced. The mere fact that the appellant had executed both the documents in favour of the four respondents would not mean that they had a joint cause of action and, therefore, the said sub-sec. (2) would not apply. In support of his contention he has referred to the case of Meyappa Chetty vs. Supramanian Chetty (4), Periaka-Ruppan vs. Mottayya (5) and Moniruddin Ahmed vs. Saratchandra Ray Chaudhuri (6 ). Learned counsel for the respondents has argued that a plain reading of sub-sec. (2) would show that wherever a defendant is made a plaintiff, sub-sec. (1) would not apply and, therefore, the question of limitation would not arise. According to him the rule is not subject to any qualification and, therefore, the Court should not introduce any words which would confine the applicability of this section only to cases where the transposed defendant has a joint cause of action with the plaintiff. It would be proper to first deal with the cases relied upon by appellant's learned counsel.
(3.) IN the first case of Meyappa Chetty vs. Subramanian Chetty (4) it was observed by their Lordships of the Privy Council that - "if A is the right person to sue, it would be clearly wrong to allow him, for the sake of avoiding the limitation ordinance, to take advantage of a suit improperly instituted by B. " If this opinion were expressed by their Lordships of the Privy Council after considering sec. 22 (2) of the INdian Limitation Act, the argument of appellant's learned advocate would have been unassailable because all the courts in INdia were at time bound by the decision of their Lordships of the Privy Council and different view could not be taken by any Court in INdia thereafter; but it may be pointed out that the said observation was made in connection with a case which had gone to their Lordships on appeal from the Supreme Court at Singapore. Their Lordships were considering the provisions of the Straits Settlements Limitation Ordinance (No. VI of 1896), which was applicable to the case and also the Civil Procedure Code (Ordinance No. 31 of 1907), which was in force there. There was no case of transposition of parties in that matter. It was a suit for declaration and dissolution of partnership and for accounts. That suit was originally filed by a plaintiff on 23-10-1911, to whom letters of administration Pendente Lite were granted. Later on, the previous letters of administration were cancelled and in lieu thereof letters of administration with the will annexed, were granted by the Supreme Court of the Straits Settlements to another person on 14th April, 1913 An order was made striking out the original plaintiff and substituting another person in his place. It was held by their Lordships that - "though the Administration derives title solely under the grant and cannot institution an action before such grant, as the will was provable in the Courts of the Straits Settlements under Sec. 3 of the C. B. C. Ordinance 31 of 1907, there was no impediment under sec. 17 (1), Limitation Ordinance, for the executor who under the law derived his title and authority from the will of his testator and not from the grant of probate,from instituting an action even before be proves the will, within the period of limitation prescribed, that is, 3 years from dissolution. " Thus, in that case there was a substitution of a new plaintiff in place of the old one and at the time when the new plaintiff was substituted the suit had become time-barred. There was no question of transposition of parties in that case because the new plaintiff was not on record before the expiry of the period of the limitation. It was under those circumstances that the said observation was made by their Lordships of the Privy Council. It further appears that sec. 22 of the Straits Settlements Limitation Ordinance was analogous to the corresponding sec. 22 of the INdian Limitation Act of 1877. It seems that there was no provision in the Straits Settlements Limitation Ordinance similar to sub sec. (2) of sec. 22 of the INdian Limitation Act as it stands at present and, therefore, the said observations of their Lordships of the Privy Council are of little help in interpreting the provisions of sub-sec. (2 ). The next case referred to by appellant's learned advocate is Moniruddin Ahmad vs. Saratchandra Ray Chaudhuri (6 ). It was a case of a little different type. In that case, one of the reversioners of the deceased had filed a suit to recover the properties alienated by the widow of the deceased. He had only one-third share in the properties left by the deceased as there were two more reversioners who were his brothers. He, therefore, claimed possession only of the one-third share by partition with the principal defendants viz. the person to whom the widow had transferred the property or those who were in possession thereof. The other two reversioners were also impleaded as defendants. After the period of limitation had expired his two brothers filed application for being transposed as plaintiffs. That application was allowed. The prayer mentioned in the original plaint were, however, not amended and the suit proceeded in the lower court on the footing as if, after the said transposition, the suit had become a suit for recovery by the three plaintiffs of sixteen annas share of the properties described in the plaint from the principal defendants i. e. the alienees. The Subordinate Judge decreed the suit in favour of the plaintiffs. In appeal, the question of limitation was raised and while dealing with that point it was observed by the learned Judges that: - "the word "suit" in sec. 22 (1) of the Indian Limitation Act means the suit as originally filed. " It was further observed that: - "although transposition involves two processes, namely, striking out a party from one side of the plaint followed by his addition to the other side of the plaint, that addition is not to be regarded as addition of a new plaintiff or defendant as the case may be. As transposition involves the addition of a plaintiff or defendant, as the case may be, to the suit as originally filed, it would, in our opinion follow that sub-sec. (2) would be applicable only to those cases where the claim of the person transposed as plaintiff could have been substained on the plaint as originally filed, or where the person remaining as plaintiff after the transposition could have sustained his claim against the transposed defendant on the basis of the plaint as originally filed. " It would appear that the original plaintiff in that case had asked only for his one-third share in the properties and, therefore, in the opinion of the learned Judges the subject matter of the suit as originally filed was only one third share and the mere transposition of the two defendants as plaintiffs could not enable them to get possession of their two-third shares, because in the opinion of the learned Judges it was "in essence addition to the subject matter of the suit and, therefore, amounted to a new plaint in respect of another subject matter". It was also observed that - "if the original plaintiff had in his plaint prayed possession by partition with them (his brothers) or joint possession with them, the position would have been different, for then it could have been said that the subject matter of the suit was 16 annas share of the items of the property described in the schedules. " It is clear from the observations quoted above that this case does not help the appellant because in the case before us the two original plaintiffs had filed the present suit for the entire amount of both the documents Ex. P-l and P-2 and, therefore, there was no alteration in the subject-matter of the suit even after the transposition of the other two plaintiffs. It was nowhere remarked by the learned Judges that sub-sec. (2) can be available only in case where the original plaintiff and the plaintiff transposed have a joint cause of action. All that this case lays down is that the suit as originally filed should remain the same after the transposition of the plaintiffs and there should be no addition in its subject matter and then only sub-sec. (2) of sec. 22 would be applicable. In that case the learned Judges also approved of the view previously taken in the cases of Hossainara Begam vs. Rahimennessee Begam (7) and Dwarkanathdas vs. Manmohan Topedar (8 ). In the latter case it was held that : - "the rule, that a party transferred from the side of the defendants to that of the plaintiffs is not a new party to whom the provisions of sec. 22, Limitation Act apply, is an absolute rule and cannot be distinguished in the way in which the learned pleader for the opposite party has sought to distinguish it. " Coming to the third case viz. Periakaruppan vs. Mottayya (5) cited by appellant's learned advocate, it was certainly observed that : - "sec. 22 sub-sec. (2) can be availed of only in case where the plaintiff and the defendant have a joint cause of action" but no reason has been given for this view. A plain reading of sec. 22 would show that the rule has not been made subject to any qualification. It is a well settled principle of interpretation that the statutes of limitation like all others, ought to receive a construction which may be borne out from the plain meaning of the 1 language. Extraneous or equitable considerations are out of place and the safest guide 'is the strict grammatical meaning which can be given to the language. In the case of Mr. Ramanandi Kuer vs. Mt. Kalawati Kuer (9) it was remarked by their Lordships of the Prive Council that: - "it has often been pointed by this Court that where there is a positive enactment of the Indian Legislature the proper course is to examine the language of that statute and to ascertain its proper meaning uninfluenced by any consideration derived from the previous state of the law or of the English law upon which it may be founded. " As will be pointed) out hereafter it is in this sense that the provisions of sec. 22 (2) have been interpreted by learned Judges in various cases In the case of Ponnammal vs. Pichai Thevan (10) a suit was originally filed by two plaintiffs, a brother and a sister, and it was stated in the plaint that a decree may be given in favour of the first plaintiff since he was said to be the only person interested in the amount. The trial court dismissed the suit. A second appeal in that case was filed only by the second plaintiff and the first plaintiff was made a respondent. The first plaintiff was later on transposed as an appellant. An objection was raised that the appeal was out of time. It was held that: - "where a I party is transposed no question of limitation arises " In another case of the same High Court A. M. Koman Nair vs. Kunhambu Moolacheri Nair (11), a suit for rent was filed by the plaintiff claiming to be an assignee of the representative of (the lessor's interest who was also impleaded as defendant No. 2 The District Munsif dismissed the suit on the ground that it should have been a suit for damages for use and occupation as the term of the lease had expired and on that footing the plaintiff as assignee had no right to sue by the assignment In appeal the Subordinate Judge felt doubtful if the plaintiff's suit was in fact for rent or for damages and. therefore, he remanded the case after framing an issue. A revision petition was filed in the High Court. The remand order was set aside and the appellate court was directed to dispose of the other issue arising in that case. Thereafter application was filed for the transposition of the assignor of the lease as plaintiff No. 2. That application was allowed. The matter again went in revision to the High Court and question was raised whether the transposition should have been allowed in view of its effect upon the question of limitation. It was observed that; - "the matter however, is not on the same footing as would be the addition of a plaintiff not already upon record. Sec. 22 (1), Limitation Act provides that in such a case the suit shall as regards such an added plaintiff, be deemed to have been instituted when he was so made a party. But sub-sec. (2) of that section expressly excludes the operation of sub-sec. (1) to the case where a plaintiff is made a defendant or defendant is made a plaintiff. It cannot be contended accordingly that the learned Subordinate Judge had no jurisdiction to make the transposition after the expiry of the limitation period within which the suit by the transposed defendant could have been brought. The only question accordingly which could arise in revision is whether having the jurisdiction he made an irregular use of it. As to this it is pointed out by Mr. B. Sitarama Rao (counsel for respondents) that the claim is identically the same whether preferred by the one plaintiff or by the other and that it is only a question whether the assignee is to obtain the remedy or the assignor. " In an earlier case of Municipal Council of Kumbakonam vs. Veeraperumal (12) a suit was brought by the plaintiff against the Municipality of Kumbakonam and another person who was also a contractor, claiming to be interested in the contract made by his brother with the Municipality. The suit was for an injunction against the defendants restraining them from interfering with the work being done under the contract and also for a small amount of damages for extra expense to which the contractor had been put owing to past interference. Subsequently leave was granted by the District Munsif to amend the plaintiff and to make the contractor defendant a plaintiff. When the case went before a Division Bench of the High Court it was urged that the amendment to the plaint was made after the period of limitation. It was held that: - "the old Act which makes the date from which the limitation runs, where a new plaintiff is substituted or added, the date when he was so made a party, has been amended and the section has no application where a defendant is made a plaintiff, as has been done in this case. " It would thus appear that in other cases decided by the learned Judge of the Madras High Court itself it has not been observed that sec. 22 (2) can be availed of only where the plaintiff and the defendant have a joint cause of action. ;