(Prayer : Civil Revision Petition filed under Article 227 of the Constitution of India against the order dated 25.10.2006 made in I.A.No.1245 of 2006 in O.S.No.308 of 2004 on the file of the District Munsif Court at Tirupur.
The petitioner is plaintiff in O.S.No.308 of 2004 on the file of the Sub Court, Tirupur. He has filed the suit for recovery of money against the defendants who were described as follows -
1. The Manager, Sri Balaji Transport Lines, Mumbai
2. The Branch Manager, Sri Balaji Transport Lines, Tirupur
3. The Branch Manager, Sri Balaji Roadways, Ahmedabad
2. Pending the trial of the suit, the petitioner filed an application under Order 6 Rule 17 CPC for amending the plaint to delete the words "Manager" and "Branch Manager" as mentioned before the names of the Transport Companies and after the names of the companies, to be described as follows -
(1) Represented by Partner Kutty S/o Madhavan Nair
(2) Represented by Partner Parimalam
(3) Represented by Partner Jeevanandham
He has also sought for certain amendments in the body of the plaint wherever the words "Manager" and "Branch Manager" occur as mentioned above.
3. In the affidavit, he has alleged that at the time of filing of the suit, the defendant's names were described mistakenly by typographical error in the short title and in the long cause title as "Manager" prior to the names of the defendant companies, that they have to be deleted and instead the words "Manager" and "Branch Manager", the defendant's transport companies have to be shown as represented through their Managing Partners.
4. The above said petition was resisted by the respondents/defendants by filing counter by stating that on 06.11.2002, the suit was filed, mentioning the Manager and Branch Manager of the transport companies as defendants, that the suit was initially not filed against the transport companies through their partners, that the Managing Directors were not impleaded at the inception, that there is no connection between the first and second defendants on one part and third defendants on the other, that four years after the filing of the suit, the petition came to be filed and hence the claim is barred by limitation and hence the petition may be dismissed.
5. After hearing both sides, the learned District Munsif, Tirupur allowed the application for amendment in part, directing the amendment to take effect from the date of filing of the petition. Aggrieved at the above said observation, the petitioner/plaintiff is before this Court with this revision.
6. At the outset, the Managers of the three transport companies were impleaded as the defendants. When the description of the defendants mentioned in the small cause title and long cause title are considered, it appears that only the Manager of the first defendant and Branch Managers of the second and third defendants have been impleaded as parties and the claim has been made against them as if they are liable to pay the money. Presently, the petitioners sought to amend the plaint so as to make the transport companies themselves liable to pay the money and prayed that they have to be represented through their Managing Partners. The suit was filed on 06.11.2002 and the written statement was filed on 04.12.2003. The amendment application was filed on 25.08.2006, admittedly after the lapse of over three years. Hence, it is the vehement contention of the learned counsel for the respondents Mr.I.C.Vasudevan that the amendment application is time barred and no relief could be granted to the plaintiff.
7. Contending contra, the learned counsel for the petitioner Mr.Marudhachalamurthy would submit that no question of operation of limitation would arise in this case. He placed much reliance upon a Division Bench decision of this Court reported in AIR 1955 Madras 294 [Mura Mohideen v. V.O.A. Mohomed and Others] wherein the learned Judge have dealt with the scope of the provisions of Section 22 of the Limitation Act in the matter of amendment of plaint. The operative portion of the judgment would go thus -
(12) In our opinion, the quotations set out correctly express the law in India also. If however imperfectly and incorrectly a party is designated in a plaint the correction of the error is not the addition or substitution of a party but merely clarifies and makes apparent what was previously shrouded in obscurity by reason of the error or mistake. The question in such a case is one of intention of the party and if the Court is able to discover the person or persons intended to sue or to be sued a mere misdescription of such a party can always be corrected provided the mistake was bona fide vide O.1 R.10, CP.C Such an amendment does not involve the addition of a party so as to attract S.22(1), Limitation Act.
8. In the said case, the suit was filed on 26.10.1944 describing the plaintiff as "V.O.A. Alliar and Sons" through one of the partners "V.O.A. Mohamed". Thereafter an amendment was sought to be made for the substitution of the name of the three partners of the firm "V.O.A. Alliar and Sons" in the place and instead of the name of the firm in I.A.No.1037 of 1945. The amendment application was filed on 05.09.1945. In the said case, amendment petition was filed within one year from the date of filing of the suit. Hence, no question of the claim of the plaintiff barred by the lapse of time of three years had arisen. In the said case, Section 22 of the Limitation Act has been discussed. The Section reads thus -
22. Continuing breaches and torts - In the case of a continuing breach of contract or in the case of a continuing tort, a fresh period of limitation begins to run at every moment of the time during which the breach or the tort, as the case may be, continues.
9. In the above said case, breach of contract and commission of continuing tort. But here, the contract was concluded and the suit has been laid for recovery of money. In order to invoke Section 22, there is no pleading in the plaint. There is no specific averment either in the plaint or in the petition for amendment that there was a breach of contract or any tort was committed by the defendants. In this context, as per the provision of Limitation Act, within a period of three years, the plaintiff has to put-forth his claim. A Full Bench of the Hon'ble Supreme Court in a decision reported in AIR 1961 SC 325 [Purushottam Umedbhai and Co., V. M/s.Manilal and Sons] has approved the Division Bench decision in Mura Mohideen's case, cited supra. The operative portion of the judgment would go thus -
The introduction of O.30 in the Code was an enabling one which permitted partners constituting a firm to sue or be sued in the name of the firm. This enabling provision, however, accorded no such facility or privilege to partners constituting a firm doing business outside India. The existence of the provisions of O. XXX in the Code does not mean that a plaint filed in the name of a firm doing business outside India is not a suit in fact by the partners of that firm individually. If, under some misapprehension, persons doing business as partners outside India do file a plaint in the name of their firm they are misdescribing themselves, as the suit instituted is by them, they being known collectively as a firm. The plaint in the name of a firm is not by itself a nullity. It is a plaint by all the partners of the firm with a defective description of themselves for the purpose of the Code.
10. In the said case, at the outset, the plaintiff was described as "Manilal and Sons". An amendment was sought for striking off such name and in its place instead names of the five persons who are the partners of the firm be entered in the plaint as plaintiffs. In both the decisions above, the establishments had been impleaded and the amendment sought for was only for
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rectifying the persons who represented the establishment. But in the case on hand, the facts are distinguishable. At the outset, the transport companies were not impleaded. Their Managers and Branch Managers alone were impleaded leaving the establishment. The proposed amendment is to the effect that the transport companies have to be impleaded which are being represented through their Managing Partners. To put it otherwise, the establishments are sought to be impleaded in the present suit, three years after the filing of the suit. Hence, there is no impediment to hold that the clam is barred by time. In such circumstances, there is no infirmity in the order passed by the Court below which deserves to be confirmed and it is accordingly confirmed. 11. In the result, the Civil Revision Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.