Bhagirath Singh and Others vs Munga Lal and Another

James, J.—This is an application for revision of the order of the Small Cause Court, Judge at Gaya decreeing a suit which was based on a handnote. The plaintiffs were a Hindu father and son who do business in their joint names and they described themselves in their plaint by their two names with the addition of the word "firm". It appears from the evidence that these two persons alone are doing business and they are presumably a joint family, so that strictly speaking the provisions of Section 5, Partnership Act, would make their description as a firm incorrect. The objection was taken that this firm was not registered, whereupon the plaint was amended by the deletion of the word "firm" in the description of the plaintiffs. Objection is now taken on behalf of the defendants that this amendment was made after limitation had expired, so that the provisions of Section 22; Limitation Act, would seem to bar the plaintiff''s suit.

Their description originally as members of a joint family would hot bar an alternative or substituted claim from them as partners: Bishamberdas v. Brijlal Arora A.I.R (1931) Bom. 590 and in this case the original description of the two plaintiffs as partners is a mere misdescription, and it'' is no addition of parties within the meaning of Section 22, Limitation Act, when the word "firm" is, deleted and they sue as members of a Hindu family. It appears that although they mighty in a sense be described as a firm without any offence against the English language, they are not a firm in the sense in which the word is used as a word of art in the Partnership Act. In the second place it is pointed out by the learned Counsel for the petitioners that the learned Small Cause Court Judge erred in declining to compel the plaintiffs to furnish particulars before the defendants entered upon their defence.

The plaint alleged that the loan had been advanced to the defendants'' family for valid family necessity. The defendants applied for particulars of the facts constituting the necessity, but the plaintiffs'' pleader objected that this would be furnishing details of evidence which he was not required to do; and the learned Small Cause Court Judge permitted this objection to prevail and the defendants filed their written statement without having the required particulars from the plaintiffs. The learned Small Cause Court Judge was in error on this point; he ought to have compelled the plaintiffs to furnish particulars or to have struck out so much of the claim as rested upon the proof of valid family necessity.

However, this was not done and the parties proceeded to trial. At the hearing of the case if the defendants had objected that owing to the absence of particulars they: were taken by surprise by the evidence of the plaintiffs, they would have been entitled to ask for time in which to produce the evidence to rebut that which had been given on behalf of the plaintiffs; but, they made no such application. Learned Counsel for the petitioners suggests that they could make no application at that stage, because the Small cause Court Judge had already accepted the plaintiffs'' plea that the particulars for which they were applying were not on matters of fact but on details of evidence hut an application for adjournment ought to have been made before a grievance could be made in a Court of revision of the fact that the defendants had been taken by surprise.

I do not in the circumstances consider that the defendants are entitled to ask that the case should be remanded for the hearing of any further evidence on their behalf, because it is clear that if there actually were any further evidence which they would have tendered if they had known in time precisely what the particulars were, they would have objected at the trial itself.

Learned Counsel further objects that the rate of interest allowed by the Small Cause Court Judge is high; and he suggests that it ought to be reduced in accordance with the provisions of Act 5 of 1938; but that Act does not extend to pending litigation the provisions of Section 9 of Act 3 of 1938.

This application is dismissed with costs.