Karibala Dasi vs Lakshman Chandra Das

P.N. Mookerjee, J.—This appeal is under Clause 15 of the Letters Patent against the judgment of our learned brother, K.C. Sen, J. dismissing the Plaintiff-Appellant''s suit on the ground of limitation.

The suit was brought, inter alia, for recovery of possession from the Defendants. In the original plaint, the Plaintiff was described as Sm. Karibala Dasi, but, in the body of the plaint there was a clear statement that the property in suit belonged to the deity Sri Sri Iswar Sridhar Thakur and Karibala was one of the shebaits. In the suit, there was also a claim by Karibala of her individual right in the disputed property as a lessee under the deity. The suit further contained a prayer for setting aside an order u/s 145 of the Code of Criminal Procedure, apparently passed against Sm. Karibala in her individual capacity.

The contesting Defendant objected to the maintainability and frame of the suit upon the ground, inter alia, that the property being debattar and Karibala being one of the shebaits, the suit was not maintainable at her instance, her individual right in the disputed property, as claimed in the plaint, being denied by the Defendant. Upon that objection, Karibala applied for amendment of the plaint for describing her, in the heading of the plaint, as suing as shebait of the deity and also in her individual capacity and for adding the other shebait Narayan Chandra Koley as pro forma Defendant No. 3. This application was allowed by the learned trial Judge and in revision, the said order appears to have been maintained by this Court.

Thereafter, the suit was decreed by the learned Munsif upon a finding, inter alia, that the property was a debattar property and Karibala, as one of the shebaits, was in the circumstances entitled to recover possession of the same from the Defendant, her claim in her individual capacity being negatived by the learned Munsif.

On appeal, the said decision of the learned Munsif was affirmed by the learned Additional Subordinate Judge.

The point of limitation was answered in favour of the Plaintiff by the trial Court as also by the first Appellate Court upon the view that, though the amendment was made beyond one year from the date of the order u/s 145 of the Code of Criminal Procedure, the suit, in the ultimate analysis, being by the deity and the deity not having been a party to the said Section 145, Code of Criminal Procedure proceeding, no question of limitation would arise under Article 47 of the Indian Limitation Act. On second appeal to this Court, the above concurrent decree was reversed by our learned brother K.C. Sen, J. upon the view that the suit would be barred under Article 47 of the Indian Limitation Act inasmuch as the amendment whereby the suit was properly constituted, as a suit on behalf of the deity by bringing on record of the other shebait Narayan Chandra Koley, was made beyond the period, prescribed under that Article. In the said view, our learned Sen, J. dismissed the Plaintiff''s suit on the ground of limitation and against his said decision, the present appeal has been filed by the Plaintiff under Clause 15 of the Letters Patent.

On the materials before us, we are of the view that the question of limitation should be answered in favour of the Plaintiff-Appellant. In the first place, the suit was on behalf of the deity and the deity was, admittedly, not a party to the proceeding u/s 145 of the Code of Criminal Procedure. That being so the question of limitation under Article 47 of the Indian Limitation Act cannot arise. Even assuming that the said Article would apply to the instant case, the amendment by which Narayan Chandra Koley was brought on the record, would not be of much relevance from that point of view, as on the allegations made in the plaint Narayan Chandra Koley would not be entitled to represent the deity in the instant proceeding and in that situation, Karibala alone could bring the suit on behalf of the deity as a shebait. When, therefore, Narayan was brought on the record as pro forma Defendant No. 3, there was strictly speaking no addition of any new Plaintiff or new Defendant within the meaning of Section 22 of the Indian Limitation Act and accordingly, the original suit having been instituted within time even for purposes of Article 47, the amendment would not have the effect of barring the suit by limitation: vide, in this connection, Sri Sri Iswar Sridhar Jieu Thakur represented by his shebait Jyoti Prosad Bandopadhya Vs. Jahor Lal Mukhopadhya and Others, . In the above view, we would hold that the instant suit would not be barred by limitation and accordingly, the decision of our learned brother, K.C. Sen, J. should be set aside and the decree of the suit, as made concurrently by the first two Courts below, should be restored.

We, accordingly, allow this appeal, set aside the decision of K.C. Sen, J. and restore the decree, passed by the learned Munsif and affirmed by the learned Additional Subordinate Judge.

There will be no order as to costs in this appeal.

Amiya Kumar Mookerji, J.

I agree.