ORDER :- This civil revision by the plaintiff arise out of a suit for the recovery of a sum of money. The suit was brought by a firm Harsukhrai Sagarmal through Sagarmal against Achhaibar and others to recover Rs. 840 on account of the price of cloth purchased by defendants from the plaintiff and on account of interest on the price of the cloth. The suit was filed on 30-4-1957. Later the plaintiff applied for amendment of the description of the plaintiff. The amendment was allowed on 13-8-1962. The words "Firm Harsukhrai Sagarmal Makua Baragaon Zariya" preceding the word "Sagarmal" were deleted from the description of the plaintiff. Various pleas were raised in defence. It was pleaded that the claim was barred by time. Munsif, Mohamdabad, who tried the suit, overruled the plea of limitation raised in defence, and held that the claim was within time. The plaintiffs claim was partly decreed. The trial Court passed a decree for a sum of Rs. 647/-/3 with interest.

2. The defendants appealed; and the plaintiff filed a cross-objection. The Civil Judge Azamgarh dismissed the cross-objection, and allowed the appeal. It was held that the plaintiff's claim was barred by time. Sagarmal appears to be dead. His son Ram Nath has filed this civil revision against the appellate decision of the Civil Judge, Azamgarh.

3. When the Civil revision came before a single Judge of this Court, he found that he was unable to agree with a decision of a single Judge of this Court as regards the effect of such an amendment of the plaint. He therefore, referred the case to a larger Bench. The question for consideration in this civil revision is whether the plaintiffs claim was within limitation.

According to the plaintiff, cause of action arose on 30-4-1954. The suit was filed on 30-4-1957. If we treat 30-4-1957 as the date of filing the suit, the claim would appear to be within limitation. But the learned Civil Judge relied on the fact that amendment was ordered on 13-8-1962. By that time the claim had become barred by time. It was therefore, held that the claim was barred by limitation. The question, therefore, arises whether the suit should be deemed to have been filed on 30-4-1957 when the plaint was presented, or on 13-8-1962 when the amendment was allowed.

4. In India Red Lead Factories Co. v. Purshottam Das, AIR 1960 Cal 327 it was held that where the plaintiff wrongly inserts the joint family trading name as defendant and then proposes to bring on record the persons forming the trading name instetad of that name, the case is not one of bringing new parties on record.

5. In Purshottam and Co. v. Manilal, AIR 1961 SC 325 a suit was brought before the Calcutta High Court in the name of a firm Mani Lal and Sons. Later the plaintiff applied for amendment of the plaint. The amendment sought was to the effect that the name of the firm Mani Lal and Sons as plaintiff be struck off, and instead the names of persons, who were partners of the firm might be entered in the plaint as plaintiff. The single Judge trying the suit disallowed amendment of the plaint. When the matter went in appeal before a Division Bench, amendment was allowed. The Division Bench observed:

"The description of a plaintiff by a firm name in a case where the Code of Civil Procedure does not permit a suit to be brought in the firm name should properly be considered a case of description of the individual partners of the business and as such a misdescription, which in law can be corrected and should not be considered to amount to a description of a non-existent person." The view taken by the Division Bench of the Calcutta High Court was approved by the Supreme Court. Their Lordships observed at pages 328 and 329: Where a suit is filed in the name of a firm it is still a suit by all the partners of the firm unless it is proved that all the partners had not authorised the suit. A firm may not be a legal entity in the sense of a corporation or a company incorporated under the Indian Companies Act.

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