GANGADHAR Vs. B B C I RAILWAY

JUDGEMENT

(1.) These rules are directed against the order of the Second Munsif of Muzaffarpur refusing to amend the plaints filed in two money suits.

(2.) The petitioners brought two money suits claiming damages for non-delivery of consignment by the railway authorities. They impleaded, among others, the "Republic Government of India" as defendant No. 4. In response to the notice, the defendants duly appeared in court and filed a written statement. It was objected on behalf of the defendants that the suit was bad for non-joinder of necessary parties since the "Union of India" has not been impleaded. Thereupon the petitioners filed an application for amending the plaints in both the suits and prayed that on account of mistake the Union of India was described as the "Republic Government of India". The petitioners asked that the plaints should be amended and in place of the Republic Government of India the "Union of India" should be substituted. The learned Munsif rejected the application for amendment filed in the two suits.

(3.) In support of these rules Mr. Nandlal Untwalia argued that the learned Munsif committed an error of jurisdiction, for the petitioners had in such terms sued the Union of India but on account of a 'bona fide' mistake the Union of India was described in the plaints as the "Republic Government of India". There is a great force in the contention of learned Counsel, for it is manifest that the petitioners had really sued the Indian Union, among other parties, for damages on account of loss of consignment, and the description of the Union of India as the "Republic Government of India" was due to a 'bona fide' mistake. It is well settled that a court has complete power to make necessary correction in the plaint where there is some misdescription of the defendant in the cause title, the reason being that the defendant has been substantially sued, though under a wrong name 'vide' the judgment of Das J. in -- 'The E. I. Rly. Co. v. Ram Lakhan Ram', AIR 1925 Pat 37 (A). This view is supported by the decision of the Calcutta High Court in -- 'Municipal Commissioners, Dacca v. Gangamani Choudhurani', AIR 1940 Cal 153 (B) in which a suit was brought against a Chairman of the Commissioners for a declaration that the assessment made by the Municipal Commissioners was 'ultra vires' and illegal. Under the Bengal Municipal Act, the suit ought to have been instituted against the Municipal Commissioners and not against the Chairman of the Municipal Commissioners. The plaintiff prayed for an amendment of the plaint impleading the Commissioners themselves. The amendment was allowed by the trial court and the suit was decreed. In appeal it was argued before the High Court that the amendment ought not to have been allowed, and in any case time of limitation ought to have been reckoned from the date of the amendment. The argument was rejected by the High Court and it was held that it was a case of misdescription which was rightly corrected under Order 1, Rule 10, Civil P. C., and the amendment related back to the date of the suit as originally filed. Applying the principle to the present case, it is obvious that the Union of India was in substance sued by the petitioners, having regard to the nature of allegations made in the plaints and the nature of relief they had sought. On behalf of the opposite party Mr. Nitai Chandra Ghosh relied upon two decisions of this Court, namely, Civil Revn. No. 184 of 1949, D/- 1-8-1950 (C) & 'Civil Revn. Nos. 176 & 177 of 1949, D/- 11-5-1950 (Pat) (D). It is true that in both these cases amendment was refused, but the material facts in each case were different from those in the present case. In Civil Revn. No. 184 of 1949 (C) the plaintiffs had sued the Governor General of India in Council, but later on they asked for an amendment in which they prayed that the words "now described as the Dominion of India or Indian pominion" should be added after the words "Governor General of India in Council. It is obvious that the Dominion of India is a different legal entity to that of the Governor General of India in Council and there is no question of misdescription in the case. The plaintiffs had really sued a wrong party and by making the amendment sought to bring another, the right party, on the record of the case. The amendment of the plaint was, therefore, rightly refused in the circumstances of this case. 'Civil Revn. Nos. 176 and 177 of 1949 (D)' also relate to a case of similar nature. There also the plaintiffs had originally brought the suit against the Governor General in Council and three railway administrations. Later on, it was discovered that the suit against the Governor General in Council was not maintainable and the correct procedure was to sue the Central Government in the name of Dominion of India and not in the name of Governor General in Council. Thereafter an application for amendment was made and it was prayed that the words "Governor General in Council" be deleted and the name of Dominion of India be substituted in its place. Here again, it is not a case of mis-description and the plaintiffs by way of an amendment sought to bring a different legal entity, namely, the Central Government, in the name of Dominion of India upon the record of the case. The amendment was, therefore, rightly refused upon the material facts of the case.