The absence of the word 'substituted' in the relevant legal provision rendered the substitution ordered by the trial Court bad in law.

ORDER :- This civil revision application is taken up for hearing ex parte. The respondents were not present at the time of the hearing.

2. The respondents filed a suit against M/s. V.N. Bandekar for recovery of the sum of Rs. 4,815.98/- being the amount allegedly due on account of timber supplied by the plaintiffs to the defendants. An objection was raised by the defendants that they were not a corporate body or legal person and that therefore the suit of the plaintiffs was bad in law and not maintainable. The learned trial court framed issue No. 4 which reads :-

"Issue No. 4 :- Whether the defendant proves that they are not a corporate body or legal person and as such suit is bad and not maintainable ?"

The trial Court came to the finding that the defendants were not a corporate body or legal person. However, instead of dismissing the suit the Court allowed the plaintiffs to amend the plaint and substitute the defendant "Shri V.N. Bandekar" for the defendants "M/s. V.N. Bandekar". Against this order Shri V.N. Bandekar, the substituted defendant, comes before me in revision.

3. Shri Ferdino Rebeilo, learned advocate for Shri Bandekar, raised three points, in the course of his arguments. The first one is that the suit was barred by limitation against Shri Bandekar when the amendment application was made to the Court. According to the plaintiff the cause of action arose on 27th December. 1973, the date on which a notice was sent to the defendants to make the payment of the sum of Rs. 4,815.98 together with interest thereon at the rate of 12% per annum. Shri Rebello contends that the cause of action, if any, had arisen on the 27th December, 1971, the day on which the timber was supplied to the defendants and not on the 27th December, 1973. The contention of Shri Rebello is correct. The Court was moved for obtaining the amendment on December 9, 1975. The limitation period for the suit is three years. Therefore against Shri Bandekar the suit was barred by limitation.

4. The second point raised by Shri Rebello is pertinent. He contends that the learned trial Judge had ordered the substitution of the party in exercise of the powers conferred by O.1, R.10, sub-rule (2). This sub-rule enables the Court to order that the name of any party improperly joined be struck out and the name of any other person who ought to have been joined, be added.It is evident from the wording of sub-rule (2) that stress has to be laid by the Legislature on the words "joined" and the words "be added". The use of these words clearly indicates that the

substitution of one party by another is not allowed. What is allowed is the subtraction of one and the addition of

another. Therefore the substitution ordered by the trial Court is bad in law. I am supported by the decision in Sisir

Kumar Tarafdar v. Manindra Kumar Biswas, AIR 1958 Cal 681. That was a Division Bench decision, wherein the Court held that the first part of the sub-rule (2) gives the Court the power to strike out the name of any party improperly joined and the second, for the addition of a party. The learned Judge poined out to the significance of the words "joined" and "added" and to the omission of the ward "substituted" in the wording of the sub-rule (2). They opined that the absence of the word "substituted" was deliberate. The state that the case of mere substitution as distinct from addition is not contemplated by sub-rule (2).

5. The third point raised by Shri Rebello is that once the Court had held that the defendants were not a body corporate or legal person, it was not possible to proceed with the suit against Shri Bandekar. He places reliance on Rajendra Nath Tikku v. Royal Calcutta Turf Club, AIR 1964 Cal 57. There, a club which was an unincorporated and unregistered body was sued as such. Subsequently an amendment was applied for to bring on record some of the members of that body in a representative capacity. The Court held that the club, being unincorporated and unregistered had no