Birbal vs Thamansingh and others

Dave, J.—This is a first appeal by the defendant Birbal against the judgment and decree of the Civil Judge, Ganganagar, dated 30-4-1952.

The facts giving rise to it Are that on 1-3-1950 two of the respondents viz. Thammansingh and Sherbahadhur brought a money suit for Rs. 7,400/-on the basis of two bonds Exs. P-1 and P-2, in the Court of the Civil Judge, Ganganagar. The other two respondents Thakursingh and Kartarsingh were impleaded as defendants. On 20-3-1950 respondents 3 and 4 presented an application to be transposed as plaintiff''s. That application was allowed by the Court and so they were transposed as plaintiffs. The only defendant then left was the present appellant Birbal. Birbal''s reply in the trial Court was that both the documents on which the suit was based were not executed by him and that they were without any consideration. It was further pleaded that the rate of interest claimed by the plaintiffs was penal, that the suit suffered from the detect of multifariousness, that it was time-barred and therefore it should be dismissed. The trial court framed the following five issues:

(1) Whether the documents Exs. P. 1 and P. 2 sued upon were executed by defendant Birbal and he is liable to pay their amount?

(2) Whether the plaintiffs were entitled to bring the suit for the whole amount?

(3) Whether the suit was not maintainable since the claim was founded on two documents and therefore there was defect of multifariousness?

(4) Whether the suit was time-barred?

(5) Whether the interest claimed was penal and if so, what rate of interest the plaintiffs were entitled to get?

All the issues were decided by the trial court against the defendant and the entire suit for Rs. 7400/- was decreed with costs.

Appellant''s learned advocate has abandoned the objection about the multifariousness of the suit in this Court. He has questioned the correctness of the decision of the trial court only on the remaining 4 issues.

The first point for the consideration of this Court, therefore, is whether Exs. P. 1 and P. 2 were executed by the appellant and whether they were without any consideration. It appears from the record of the trial court that the plaintiffs examined P.W. 1 Mangilal, who is the scribe of both the documents, and also P.W. 2 Nanuram and P.W. 3 Partapsingh who are attesting witnesses of both the documents. P.W. 1 Mangilal has stated that both Exs. P. 1 and P. 2 were written by him at the request of the appellant Birbal and that he had affixed his thumb impression on both of them in his presence. He further says that he had read out both the the documents to the appellant and the appellant had admitted that he was liable to pay Rs. 1500/- and Rs. 2200/- for both the documents.

Similarly P.W. 2 Nanuram and P.W. 3 Partapsingh have stated that the appellant had admitted before them that he owed an ancestral debt obtained by his father from the respondents for Rs. 1500/- that he had further borrowed Rs. 2200/- from the respondents for his sons marriage and that the appellant had affixed his thumb impression on both the documents in their presence. The witnesses further say that the documents also bear their thumb impressions. All the three witnesses were cross-examined at length by the appellant but their evidence has remained unshaken. One of the plaintiffs viz. Thakursingh has also appeared in the witness box and he has also stated that both the documents were executed by the defendant and that they were with consideration.

Learned counsel for the appellant has attacked the statement of Thakursingh on the ground that in his examination-in-chief he has stated that Rs. 2200/- were given in cash to the defendant on the same day on which the document for that sum was executed. It is urged that the document itself shows that Rs. 2200/- were not given in cash OP the day of its execution and therefore, no reliance should be placed on this witness. It is contended that this on the other hand shows that the document is without consideration and Rs. 2200/- were never advanced to the appellant. This argument is not correct because in the same statement the witness corrected the error which had crept in on account of some slip or loss of memory and he has stated that Rs. 2200/- were given in cash 4 or 5 days before the execution of this document.

While the plaintiff has thus proved the execution of both the documents and also the consideration, it is significant that the defendant has not produced any evidence in rebuttal. He has not even examined himself and therefore a mere denial on his part is of no avail.

One more argument advanced by appellant''s learned advocate in this connection is that both the documents bear the appellant''s thumb impressions only on the first page and therefore it should be held that they were not properly executed by him. In our opinion this argument is also without any force because the relevant facts regarding both the transactions appear on the first page in both the documents. It appears that thumb impressions were not obtained on all the pages because of some such practice prevailing in that area.

In the case of - J. and D. Eziekeil, Carrying Business under the Name and Style of Ezekeil and Co. Vs. Annada Charan Sen, it was held following the cases of - ''Johnson v. Dodgson'', (1837) 2 M & W 653 (B) and - ''Caton v. Caton'', (1867) 2 HL 127 (C), that

the insertion of the name in any part of the writing, in a manner to authenticate the instrument, is sufficient. Although the signature be in the beginning or middle of the instrument, it is as binding as if at the foot of it. The question always is, whether the party, not having signed it regularly at the foot, yet meant to be bound by it as it stood, or whether it was left, so unsigned because he refused to complete it; but when it is ascertained that he meant to be bound by it as a complete contract, the signature is, for purposes of execution, effective.

In the present case it was not pleaded by the appellant that he had left the other pages unsigned for certain reason like incompletion of the contract. On the other hand is has been proved by the respondents that both the documents were executed at the appellant''s instance and attested at his direction and therefore, the mere fact that the appellant did not affix his thumb impressions on other leaves is of no material consequence. This objection, therefore, is also fit to be dismissed.

The next question raised by appellant''s learned advocate is that of limitation. It is contended by him that in both the documents the appellant had specifically mentioned that he was liable to pay two-thirds of the total amount of loan to Thammansingh and Thakursingh in equal shares and the remaining one-third portion of the loan to Kartarsingh and Sherbahadur in equal shares. It is urged that in other words Thammansingh and Thakursingh had each advanced one third amount of the loan separately and similarly Kartarsingh and Sherbahadur had each advanced one-sixth share of the loan separately and therefore, the appellant could also be liable to repay them the same amount separately in the manner pointed out above.

According to learned counsel for the appellant there were in fact four transactions between the appellant and the four respondents and Thammansingh and Sherbahadur therefore, could not bring the suit for the entire amount of both the documents. It is urged that Thakursingh & Kartarsingh did not join Thammansingh and Sherbahadur at the time of the institution of the suit. At that time they were only defendants. They were transposed as plaintiffs when their claim had already become time-barred and therefore, the claim for at least half the amount was beyond limitation.

Learned counsel for the respondents has on the other hand urged in reply that the respective shares of the respondents were mentioned in both the documents only for the convenience of the respondents so that there may be no difficulty in distributing the amount between them when it was repaid. According to him the appellant''s responsibility towards respondents was joint and several and therefore, even two respondents could bring the suit for the whole amount. It is further contended that the other two respondents viz. Kartarsingh and Thakursingh were impleaded as defendants from the very beginning and since they were transposed as plaintiffs the question of limitation did not arise in view of S. 22 (2), Indian Limitation Act. The determination of the question of limitation in this case rests upon the interpretation of S. 22, Indian Limitation Act. It runs as follows:

S. 22. (1) Where, after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party.

(2) Nothing in Sub-s. (1) shall apply to a case where a party is added or substituted owing to an assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff.

Learned advocate for the appellant has urged that Sub-s. (2) of the said section can be availed of, only in cases where the plaintiff and the defendant have a joint cause of action. According to him, each one of the respondents had a separate cause of action in respect of the specific amount of loan which each one of them had advanced. The mere fact that the appellant had executed both the documents in favour of the four respondents would not mean that they had a joint cause of action and, therefore the said Sub-s. (2) would not apply. In support of his contention he has referred to the cases of - ''Meyappa Chetty v. Supramanian Chetty'', AIR 1916 PC 202 (D); - A.P.K.C. Periakaruppan Chetti and Others Vs. Mottayya Mudali and Others, ; and - ''Moniruddin Ahmed v. Saratchandra'', ILR (1949) 1 Cal 85 (F).

Learned counsel for the respondents has argued that a plain reading of Sub-s. (2) would show that wherever a defendant is made a plaintiff, Sub-s. (1) would not apply and, therefore, the question of limitation would not arise. According to him the rule is not subject to any qualification and therefore, the Court should not introduce any words which would confine the applicability of this section only to cases where the transposed defendant has a joint cause of action with the plaintiff. It would be proper to first deal with the cases relied upon by appellant''s learned counsel.

In the first case of '' AIR 1916 PC 202 (D) it was observed by their Lordships of the Privy Council that

if A is the right person to sue, it would be clearly wrong to allow him, for the sake of avoiding the limitation ordinance, to take advantage of a suit improperly instituted by B.

If this opinion were expressed by their Lordships of the Privy Council lifter, considering S. 22(2). Indian Limitation Act, the argument of appellant''s learned advocate would have been unassailable because all the courts in India were at that time bound by the decision of their Lordships of the Privy Council and different view could not be taken by any Court in India thereafter; but it may be pointed out that the said observation was made in connection with a case which had gone to their Lordships on appeal from the Supreme Court at Singapore.

Their Lordships were considering the provisions of the Straits Settlements Limitation Ordinance (VI of 1896); which was applicable to the case and also the CPC (Ordinance 31 of 1907), which was in force there. There was no case of transposition of parties in that matter. It was a suit for declaration and dissolution of partnership and for accounts. That suit was originally filed by a plaintiff on 23-10-1911, to whom letters of administration ''pendente lite'' were granted. Later on, the previous letters of administration were cancelled and in lieu thereof letters of administration with the will annexed, were granted by the Supreme Court of the Straits Settlements to another person on 14-4-1913. An order was made striking out the original plaintiff and substituting another person in his place. It was held by their Lordship that

Though the Administrator derives tide solely under the grant and cannot institute an action before such grant, as, the will was provable in the Courts of the Straits Settlements under S. 3, C.P.C. Ordinance 31 of 1907, there was no impediment under S. 17(1), Limitation Ordinance, for the executor who under the law derived his title and authority from the will of his testator and not from the grant of probate, from instituting an action even before he proves the will, within the period of limitation prescribed, that is, 3 years from dissolution.

Thus, in that case there was a substitution of a new plaintiff in place of the old one and at the time when the new plaintiff was substituted the suit had become time-barred. There was no question of transposition of parties in that case because the new plaintiff was not on record before the expiry of the period of limitation. It was under those circumstances that the said observation was made by their Lordships of the Privy Council. It further appears that S. 22, Straits Settlements Limitation Ordinance was analogous to the corresponding S. 22, Indian Limitation Act of 1877. It seems that there was no provision in the Straits Settlements Limitation Ordinance similar to sub-s. (2) of S. 22, Indian Limitation Act as it stands at present and, therefore, the said observations of their Lordships of the Privy Council are of little help in interpreting the provisions of Sub-s. (2).

The next case referred to by appellant''s learned advocate is - ''Moniruddin Ahmad v. Saratchandra Ray'', (F). It was a case of a little different type. In that case, one of the reversioners of the deceased had filed a suit to recover the properties alienated by the widow of the deceased. He had only one-third share in the properties left by the deceased as there were two more reversioners who were his brothers. He, therefore, claimed possession only of the one third share by partition with the principal defendants viz., the person to whom the widow had transferred the property or those who were in possession thereof. The other two reversioners were also impleaded as defendants. After the period of limitation had expired his two brothers filed application for being transposed as plaintiffs. That application was allowed. The prayers mentioned in the original plaint were, however, not amended and the suit proceeded in the lower Court on the footing, as if, after the said transposition, the suit had become a suit for recovery by the three plaintiffs of sixteen annas share of the properties described in the plaint from the principal defendants i.e., the alienees.

The Subordinate Judge decreed the suit in favour of the plaintiffs. In appeal the question of limitation was raised and while dealing with that point it was observed by the learned Judges that

the word ''suit'' in S. 22(1), Limitation Act means the suit as originally filed.

It was further observed that

Although transposition involves two processes, namely, striking out a party from one side of the plaint followed by his addition, to the other side of the plaint, that addition is not to be regarded as addition of a new plaintiff or defendant as the case may be. As transposition involves the addition of a plaintiff or defendant, as the case may be, to the suit as originally filed, it would, in our opinion, follow that sub-s. (2) would be applicable only to those cases where the claim of the person transposed as plaintiff could have been sustained on the plaint as originally filed, or where the person remaining as plaintiff alter the transposition could have sustained his claim against the transposed defendant on the basis of the plaint as originally filed.

It would appear that the original plaintiff in that case had asked only for his one-third share in the properties and, therefore, in the opinion of the learned Judges the subject-matter of the suit as originally tiled was only one-third share and the mere transposition of the two defendants as plaintiffs could not enable them to get possession of their two-third shares, because in the opinion of the learned Judges it was

in essence addition to the subject-matter of the suit and, therefore, amounted to a new plaint in respect of another subject-matter.

It was also observed that:

If the original plaintiff had in his plaint prayed for possession by partition with them (his brothers) or joint possession with them, the position would have been different, for then it could have been said that the subject-matter of the suit was 16 annas share of the items of property described in the schedules.

It is clear from the observations quoted above that tills case does not help the appellant because in the case before us the two original plaintiffs had filed the present suit for the entire amount of both the documents Exs. P-1 and P-2 and therefore there was no alteration in the subject-matter of the suit even after the transposition of the other two plaintiffs: It was nowhere remarked by the learned Judges that sub-s. (2) can be available only in case where the original plaintiff and the plaintiff transposed have a joint cause of action.

All that this case lays down is that the suit as originally filed should remain the same after the transposition of the plaintiffs and there should be no addition in its subject-matter and then only sub-s. (2) of S. 22 would be applicable. In that case the learned Judges also approved of the view previously taken in the cases of - ''Hossainara Begam v. Rahimannessa Begam'', 38 Cal 342 (G); and - ''Dwarkanathdas v. Monmohan'', AIR 1915 Cal 759 (H). In the latter case it was held that

the rule, that a party transferred from the side of the defendants to that of the plaintiffs is not a new party to whom the provisions of S. 22, Limitation Act apply, is an absolute rule and cannot be distinguished in the way in which the learned pleader for the opposite party has sought to distinguish it.

Coming to the third case viz. - ''Periakaruppan v. Mottayya'', (E), cited by appellant''s learned advocate, it was certainly observed that

Section 22, Sub-s. (2) can be availed of only in cases where the plaintiff and the defendant have a joint cause of action.

but no reason has been given for this view. A plain reading of S. 22 would show that the rule has not been made subject to any qualification. It is a well settled principle of interpretation that the statutes of limitation, like all others, ought to receive a construction which may be borne out from the plain meaning of the language. Extraneous or equitable considerations are out of place and the safest guide is the strict grammatical meaning which can be given to the language. In the case of - ''Mt. Ramanandi Kuer v. Mt. Kalawati Kuer'', AIR 1928 PC 2 (I), it was remarked by their Lordships of the Privy Council that

it has often been pointed by this Court that where there is a positive enactment of the Indian Legislature the proper course is to examine the language of that statute and to ascertain its proper meaning, uninfluenced by any consideration derived from the previous state of the law or of the English law upon which it may be founded.

As will be pointed out hereafter it is in this sense that the said provisions of S. 22(2) have been interpreted by learned Judges in various cases.

In the case of - Ponnammal Vs. Pichai Thevan and Others, a suit was originally filed by two plaintiffs a brother and a sister and it was stated in the plaint that a decree may be given in favour of plaintiff 1 since he was said to be the only person interested in the amount. The trial Court dismissed the suit. A second appeal in that case was filed only by plaintiff 2 and plaintiff 1 was made a respondent. Plaintiff 1 was later on transposed as an appellant. An objection was raised that the appeal was out of time. It was held that

where a party is transposed no question of limitation arises.

In another case of the same High Court A.M. Koman Nair Vs. Kunhambu Moolacheri Nair and Another, a suit for rent was filed by the plaintiff claiming to be an assignee of the representative of the lessor''s interest, who was also impleaded as defendant 2. The District Munsif dismissed the suit on the ground that it should have been a suit for damages for use and occupation as the term of the lease had expired and on that footing the plaintiff as assignee had no right to sue by the assignment. In appeal the Subordinate Judge felt doubtful if the plaintiff''s suit was in fact for rent or for damages and therefore, he remanded the case after framing an issue. A revision petition was filed in the High Court. The remand order was set aside and the appellate Court was directed to dispose of the other issues arising in that case. Thereafter application was filed for the transposition of the assignor of the lease as plaintiff 2. That application was allowed. The matter again went in revision to the High Court and a question was raised whether the transposition should have been allowed in view of its effect upon the question of limitation, It was'' observed that

the matter however, is not on the same footing as would be the addition of a plaintiff not already upon record. S. 22(1), Limitation Act provides that in such a case the suit shall as regards such an added plaintiff be deemed to have been instituted when he was so made a party. But sub-s. (2) of that section expressly excludes the operation of sub-s. (1) to the case where a plaintiff is made a defendant or defendant is made a plaintiff.

It cannot be contended accordingly that the learned Subordinate Judge had no jurisdiction to make the transposition after the expiry of the limitation period within which the suit by the transposed defendant could have been brought. The only question accordingly which could arise in revision is whether having the jurisdiction he-made an irregular use of it. As to this it is pointed out by Mr. B. Sitarama Rao (counsel for respondents) that the claim is identically the same whether preferred by the one plaintiff or by the other and that it is only a question whether the assignee is to obtain the remedy'' on the assignor.

In an earlier case of - ''Municipal Council of Kumbakonam v. Veeraperumal'', AIR 1916 Mad 310 (L) a suit was brought by the plaintiff against the Municipality of Kumbakonam and another person, who was also a contractor, claiming to be interested in the contract made by his brother with the Municipality. The suit was for an injunction against the defendants restraining them from interfering with the work being done under the contract and also for a small amount of damages-for extra expense to which the contractor had been put owing to past interference. Subsequently leave was granted by the District Munsif to amend the plaint and to make the contractor defendant a plaintiff. When the case went before a Division Bench of the High Court it was urged that the amendment of the plaint was made after the period of limitation. It was held that

the old Act which makes the date from which the limitation runs, where a new plaintiff is substituted or added, the date when he was so made a party, has been amended and the section has no application where a defendant is made a plaintiff, as has been done in this case.

It would thus appear in other cases decided by the learned Judges of the Madras High Court itself it has not been observed that S. 22(2) can-be availed of only where the plaintiff and the defendant have a joint cause of action.

In the case of - AIR 1927 484 (Oudh) one Ramgopal had advanced loan to Bhoopsingh. After his death a suit was brought for the recovery of the money by the Secretary of Arya Samaj, Lucknow on the ground that the money borrowed by the defendant was trust money and that the trust was created by Ramgopal himself under a deed. On an objection by the debtor an issue was framed as to whether the Arya Samaj had a right to institute the suit. The debtor had not only contested the trust but also raised an objection that Mt. Tulsha Devi, widow of Ramgopal was the proper person entitled to sue for that amount. Mt. Tulsha Devi who was already a defendant was thereupon-removed from the array of defendants and transposed as a plaintiff. The decree was finally given in favour of Mt. Tulsha Devi. The defendant then appealed and the first appellate Court dismissed the suit on the ground that Mt. Tulsha Devi should not have been transposed as a plaintiff. On second appeal that decision was reversed with the following observation:

This argument about limitation is clearly in the teeth of sub-s. (2), S. 22, Limitation Act, 1908. We have already said that Mt. Tulsha Devi was a defendant to the suit as it was originally brought and in the subsequent proceedings her position from that of a defendant was changed to that of a plaintiff. The case is, therefore, entirely covered, by the rule enacted in sub-section (2) just now referred to.

It is crystal clear that in the said case there was no question of joint cause of action between the Secretary, Arya Samaj, Lucknow and Mt. Tulsha Devi. It may also be pointed out here that this view was cited with approval in the case of - ''A.M. Koman Nair v. K. Moolacheri Nair (K)''.

In the case of - Rambeas Tewari and Others Vs. Akhauri Raj Mohan Sahay and Others, a suit for recovery of rent was brought by the plaintiff who was interested in eight annas share. The others who were interested in the remaining share were also joined as defendants along with the tenants. They did not join as plaintiffs in the beginning on account of ill-feelings between them and the plaintiff. The plaintiff therefore, asked only for his share but added that if defendants 6, 7 and 8 wanted to join him, it would be open to them. Later on, they also joined as plaintiffs. On an appeal by the defendants-tenants, it was urged that the suit was barred as regards the share of the defendants who had been transferred to the category of plaintiffs in respect of two years in suit. This contention was repelled and it was observed that

The point is met by the provisions of S. 22, sub-S. (2), Limitation Act. This section especially provides that where a plaintiff is made a defendant or a defendant is made a plaintiff the bar of limitation will not arise. It is, however, contended that sub-s. (2), S. 22, Limitation Act does not refer to cases where by the transfer of a defendant to the category of plaintiff the claim is enhanced. In my opinion there is no authority for this contention. In order to put that interpretation upon sub-s, (2), S. 22, it will be necessary to read into the sub-section words which do not occur there. Sub-section (2) was especially added with the object of saving the bar of limitation when a defendant is transferred to the category of plaintiff.

It is clear that the learned Judge in this case went to the extent of saying that the suit was not barred even though the claim was enhanced. This is a wider view on the other extreme. The learned Judges deciding the case of ''Moniruddin Ahmed v. Saratchandra (F)'' dissented from this view because in their opinion the word "suit" meant only the suit originally filed, but it was remarked that if in the plaint the entire rent was claimed in the alternative, they would not have dissented from this view.

In another case of - Surajman Prasad Misra Vs. Sadanand Misra and Others, a suit based on a promissory note was filed by a real owner impleading the holder benamidar as a defendant. It was observed that if the holder wished to be made a plaintiff he ought to have been allowed to do so by the Munsif who had dismissed the suit. It was further observed that:

The Legislature has by enacting sub-s. (2), S. 22, Limitation Act, recognised that if a person is a party to a suit, his change of position will not affect limitation and it was to meet cases like these that it has been provided that if a party already on the record is transferred from the category of the defendant to that of the plaintiff or vice versa, the provisions of cl. (1) will not apply, and I think, in a proper case the Court will be exercising a wise discretion if it allowed such transpositions in order to give relief to an aggrieved party. To disallow this on the ground given by the learned Judges will be defeating the very object which the Legislature had in view.

Similarly, in the case of - AIR 1944 298 (Nagpur) an attaching creditor of a preliminary decree for sale on a mortgage presented an application to make the decree final. The decree-holder and the judgment-debtor were both impleaded as non-applicants. Later on the decree-holder was sought to be transposed as an applicant. A question about limitation was thereupon raised before the Court. It was held that "in view of the clear provision of S. 22(2), Limitation Act, no question of limitation arises in case of transposition of parties." The learned Judges felt so sure that about this view that they did not even call upon the counsel for the attaching creditor to reply to the arguments advanced by counsel for judgment-debtors.

A review of the above authorities would show that if after the institution of the suit a defendant is made a plaintiff and the claim as originally filed is not so altered as to change the original suit, a mere transposition of a defendant to the array of the plaintiff would not bar the suit, as regards the transposed plaintiff, even though he was transposed after the expiry of the period of limitation prescribed for that suit.

The plain language of S. 22(2), Limitation Act does not admit of an interpretation that it would apply only to cases where the original plaintiff and the transposed plaintiff have a joint cause of action. The section, as it stands, lays down an absolute rule which is not subject to any qualification except the one pointed out in the case of ''Moniruddin Ahmed v. Saratchandra (F)'' because of the presence of sub-s. (1). In the present case the claim has not been enhanced in any way after the transposition of the defendants Thakursingh and Kartarsingh. There is, therefore, no force in the argument raised by appellant''s learned advocate.

The last objection of appellant''s learned advocate is about interest. It appears that the stipulated rate of interest settled between the parties is Rs. 1/9/- per cent. per month. The respondents have, however, claimed only the amount of interest which is equal to the principal. The rate of interest, therefore, cannot be said to be penal. The trial Court has not allowed interest pendente lite, nor future interest has been decreed. Under the circumstances, there seems no reason for our interference in the matter.

The appeal is, therefore, dismissed with costs.