Sharma, J. - (1.) THIS is an appeal by the plaintiffs against the judgment and decree of the learned Senior Civil Judge, Tonk in a suit for the recovery of Rs. 500/- principal and Rs. 85. 3. 9 interest. The suit was filed in the court of the Munsif, Uniara on the 11th of July, 49.
(2.) ACCORDING to the plaint, the defendant Syed Nazim Hussain had purchased barley of the value of Rs. 1,700/- from the plaintiff Fatehlal in July, 1947 and out of this the defendant had paid Rs. 1,200/- to him and Rs. 500/- remained due from the defendant. In Feb. 1948 when the plaintiff Fatehlal made a demand for the above balance, the defendant wrote a letter dated the 22nd of February, 1948 to Chhitarlal of Uniara requesting him to pay a sum of Rs. 500/- to Madankumar the son of the plaintiff Fatehlal. As no amount was due from Chhitarlal to the defendant, the former declined to make any payment to the plaintiff through Madankumar. The plaintiff Fatehlal therefore, prayed for a decree for a sum of Rs. 500/- with Rs. 85*3-0 interest at the rate of 12% per annum. The defendant filed his written statement on the 12th of January, 1950. He denied having purchased any barley from the plaintiff and pleaded that in fact certain traders of Sambhar had purchased barley through the Firm Sobhalal Roopchand and that out of the price of the said barley, Rs. 1,200/-had been sent by them to the said Firm through the defendant, The defendant made over this amount to the firm which claimed the balance of Rs. 500/-also and the defendant thinking that the purchasers might have deposited this amount with the firm Chitarmal with which those purchasers had dealings, had written the letter at the request of the plaintiff. It was pleaded that the suit could not be based on the letter in question. After the written statement of the defendant, the plaintiff thought it advisable to join Sobhalal also as plaintiff. Consequently, an application for amendment was made on the 24th of January, 1950 praying that Sobhalal's name be added as plaintiff and consequential amendments might be made in the body of plaint. The defendant objected to this amendment, but Sobhalal expressed his willingness to be made a plaintiff. Learned Munsiff, by his order dated the 30th of March, 1950, allowed the amendment application and ordered that Sobhalal's name be added as plaintiff as he had expressed his willingness to be so added by means of a written application. Consequential amendments were also ordered to be made. It appears that in accordance with the order dated the 30th of March, 1950, amendments were made in the plaint actually on the 23rd of October, 1952 and it was on that date that Sobhalal signed and verified the plaint. In view of the amended plaint, certain objections also appear to have been raised by the defendant and certain additional issues were framed, but so far as this appeal is concerned, I am concerned with issue No. 8, which when translated into English reads as follows: - Parties produced their evidence and the learned Munsif after considering the evidence, decided all the issues excepting one relating to interest, in favour of the plaintiff, and against the defendant. The result was that the suit was decreed only for the recovery of Rs. 500/ -. This judgment of the learned Munsif is dated the 30th of October, 1952. The defendant when in appeal and the learned Senior Civil Judge, Tonk accepted the appeal and dismissed the plaintiff's suit on the following grounds; - (1) The suit was time barred as Sobhalal signed and verified the plaint on the 23rd Oct. , 1952 when the suit had become barred and other amendment prayed for were also made on the same date. (2) The letter which was the basis of the suit, was a bill of exchange and no notice had been given of its dishonour to the defendant; (3) According to the letter in suit, Madankumar was the holder and it was he who was entitled to bring the suit and not the present plaintiff. Against the above judgment and decree of the learned Senior Civil Judge dated the 30th Jan. , 1953 the plaintiffs have come in appeal. I have heard Shri S. M Mehra on behalf of the appellants. Nobody appears on behalf of the respondent and the appeal was therefore heard ex parte. It has been argued by Shri Mehta that the question that the letter in suit was a negotiable instrument, was not raised in the pleadings of the defendant. However, this question was raised in the course of arguments and the learned judge of the first court has considered this question, and he has given a decision that the letter was not a negotiable instrument. It was argued that very good reasons have been given by the first court for holding that the letter was not a negotiable instrument and the learned Senior Civil Judge has not given any sound reasons why the said document was a negotiable instrument. As regards the question of limitation, it was argued that the application for the addition of Sobhalal as one of the plaintiffs had been made on the 21st of Feb. , 1950 when the suit was still within limitation and even the order on the amendment application was made within the prescribed period of limitation. Sobhalal had signified his assent to become a plaintiff by means of his written application before the order of the learned Munsiff was made on the amendment application. No doubt, the amendment was made in accordance with the order of amendment after the period of limitation had expired but on this account, the suit could not become time barred. As regards third objection, it was argued that the very letter shows that the barley in question had been purchased from Fatehlal plaintiff and that the amount of Rs. 500/- was due to him. Madankumar, who was the plaintiff Fatehlal's son, had simply been sent by the plaintiff to bring the amount of Rs. 500/- from Nagar where the Chhitarlal was residing. The real plaintiff were, therefore, Fatehlal and Sobhalal and Madankumar was only an agent of the plaintiff. I have considered the arguments of the learned counsel for the appellants. In view of the fact that nobody appears on behalf of the respondent, I have very anxiously gone through the record of the case and have also perused the rulings cited by the learned counsel for the appellants, and also those on which reliance has been placed by the learned lower appellate court My finding on these three questions are as follows: (1) Whether the suit was time barred: - The suit was filed by Fatehlal on the 18th July, 1949, whereas cause of action had arisen on the 22nd Feb. , 1948. It was, therefore, well within time when filed. The argument of the respondent which has been accepted by the learned Judge of the lower appellate court was that actual amendment in the plaint in accordance with the application for amendment dated the 24th of January, 1950 and the order of amendment of the 30th of March, 1950, was made on the 23rd of October, 1952. On the said date, the suit had become barred and it is that date, which is material. I do not think that this view of the learned Judge of the lower appellate court was correct in the circumstances of this case. The suit had been filed by one of the plaintiffs Fatehlal within two years of the cause of action when it was well within time. The application for amendment praying for the addition of Sobhalal's name as one of the plaintiffs was made on the 24th January, 1950 and even till that time, not even two years had elapsed from the date of cause of action. Sobhalal signified his willingness to be joined as a plaintiff as soon as he got notice of the application for amendment as the order dated the 30th of March, 1950 shows. The learned Munsiff, after hearing both the parties ordered the amendment to be made as prayed. Whin the order was made on the 30th of March, 1950, there were still a few months left for the expiry of the period of limitation. It is only the actual amendment of the plaint in accordance with the application for amendment and the order of amendment which was made after the period of limitation. To my mind, when the application for amendment had been made within time, all that followed afterwards would not make the plaint barred by limitation. It is the business of the party to move an application for amendment and it is the business of the court to pass order thereon. It may be that an application might be made well within the period of limitation, but the court might not find time to pass order thereon before the expiry of the period of limitation. If the view of the learned Senior Civil Judge is to be accepted in such cases suits would become time barred for no fault of the party. That is why there are a number of High Courts in India which have held that once an application for amendment has been made within limitation, it does not matter when the order of amendment is made or it is implemented. I may cite a D. B. ruling of Madras High Court in the case of South India Industrials Ltd. , vs. Mothey Narasimha Rao (l) in which it has been held that: - "when a party is added on application, addition must be deemed to have effect from the date of the application. " In that case, application, for amendment was made on the 27th January, 1923 and an order of amendment was made on the 23rd February, 1923. An application for review was made of order dated 23. 2. 1923 and it was accepted and it was ordered that the amendment application be reheard. On the 26th April, 1923, the application was dismissed. A revision was filed against that order and it was accepted and amendment was ordered which was after the period of limitation had expired. It was held that the order of amendment must relate back to the date of the application for amendment. Another ruling is that of Sind Judicial Commissioner's Court. In the Hassanand vs. Nandiram (2), it was held that - Where an application is made to join certain persons as parties, they become parties to the suit from the time when the application is presented and not when the court passes its order joining them as parties. " I agree with the principle laid down in these rulings and hold that the suit did not become barred by time in the present case simply because the order of amendment which had been made within limitation, was given effect to after the limitation had passed. There is one other feature in this case which may be noted, Sobhalal had given his consent for being arrayed as a plaintiff in writing before the period of limitation had expired. This also cures the defect, if any. Learned lower appellate court has relied upon a ruling of the Bombay High Court in the case of the Prince Line Ltd. vs. The Trustees of Bombay (3 ). That ruling is not applicable to the facts of the present case. In that case, there was no question of the amendment application having been made within time and the order of amendment having also been made within time but carried out after limitation had expired. That was a case for damages by fire on the 20th of May, 1943. Within the meaning of sec. 87 of the Bombay Trust Act, such a suit could be brought within six months from the date of the cause of action. The suit was brought within the prescribed period but the power of attorney was held to be not a general power of attorney as required by O. III, r. 2 C. P. C as amended in Bombay. It was held that the suit was not properly instituted. On this the plaintiff prayed for time to get a general power of attorney to enable the constituted attorneys of the plaintiffs to sign and verify the plaint. Time was given up to the 11th of August, 1947. Before that, on the 16th of July, 1947, a general power of attorney as required by law, was filed. At the time of giving the plaintiff an opportunity to file a general power of attorney according to law, it had been made clear in the order that the order was without prejudice to the defendants' contention that the plaintiff's claim in the suit was barred by the law of limitation. Under these circumstances, it was held that the suit against all the defendants was barred by the law of limitation. It may be noted that the order to give time to the plaintiffs to get a general power of attorney was made long after the period of limitation had expired and the general power of attorney was filed after the expiry of the period of limitation. This case was therefore, of no help to the defendant and the lower court was not justified in seeking assistance from that in holding the present suit to by time barred. Coming to the next point whether the document in question is a bill of exchange, it has to be noted that a bill of exchange is an instrument in writing containing an unconditional order, signed by the maker, directing a certain person to pay a certain sum of money only to, or to the order of a certain person, or to the bearer of the instrument, vide sec. 5 of the Negotiable Instruments Act. In a bill of exchange, it is necessary that the order should be unconditional. From the language of the instrument filed in this case, it may not be clear whether the order was conditional or unconditional but in such cases the intention of parties at the time of the execution of the document is to be looked into as held in the case of Chiranjilal vs. Ramnath (4 ). In that case, the language of the instrument was like that of a promissory note but there were several facts from which the intention of the parties was gathered. The document was in a bahi. Balance was struck and it was promised that the amount would be paid whenever demanded with interest at a certain rate. It was held that the primary intention of the parties was that a balance of the previous account be struck in the Khata of the debtor in the account books of the creditor and a certain rate of interest was also recorded in order to end any dispute about the rate. The Khata was stamped with one anna stamp, although according to the law in Jaipur prevailing at that time a promissory note was chargeable with a stamp of two annas. Considering all these facts, it was held that it could not be said that the parties intended that the document should be negotiable. In the present case, according to the plaintiff, the defendant thought that certain amount was due to him from Chhitarlal. The intention was, therefore, that this amount of Rs. 500/- was to be paid by Chhitarlal if it was due to the defendant from him. According to the defendant also the letter was given under an impression that the amount of Rs. 500/- had been deposited with him by the traders of Sambhar for payment to the plaintiff on barley account. The payment was therefore to be made according to the, intention of both the parties if anything was due from Chhitarlal. It cannot, therefore, be said to be an unconditional order. This document is not at all stamped,whereas a bill of exchange was chargeable with a certain duty according to the laws of Tonk State of which Niwai,where the document was executed,was a part at that time. This also shows that the document was not intended to be negotiable.
(3.) IT is to be noted that the defendant himself did not plead in his written statement that the document in question was a bill of exchange and consequently it was inadmissible for want of payment of stamp duty and the suit could not be maintained as no notice of dishonour was given. As regards the third point, the document itself shows that the money was required for the payment of Fatehlal and not to Madanlal. Madanlal was only an agent through whom the money was sent for. The lower court was therefore wrong in holding that the suit was liable to be dismissed as it is Madanlal, who ought to have filed the suit. I am unable to maintain the decree of the lower appellate court. The appeal is allowed ex parte, the decree of the lower appellate court is set aside and that of the first court maintained. The plaintiff-appellant shall get ex-parte costs of this Court from the defendant respondent) and he shall also get costs of both the lower courts from the defendant. .;