1. This Miscellaneous Appeal (No. 180 of 1924) and the S. A. No. 1016 of 1924 are directed against the same decision of the Court below. There is also an application under Section 115, C. P. C, filed by the appellant against the same order. The explanation is that in the present unsettled state of the law the appellant could not decide on the proper procedure.

2. The Miscellaneous Appeal was first heard and the learned Advocate for the respondent took a preliminary objection on the ground that no appeal lay. The facts of the case are that the plaintiff respondent brought a suit for recovery of the value of certain goods which he had despatched from one railway station to another on the Bengal Nagpur Railway but the goods were not delivered to the consignee. He accordingly raised the present suit and in the plaint filed the name of the defendant was given as " Agent of the Bengal Nagpur Railway Saheb " Bahadur". The defendant, Mr. Young, who was the Agent of the Bengal Nagpur Railway Company at the time, appeared and one of the objections that he took was that the frame of the suit was bad. He also took other objections under Sections 75 and 77 of the Indian Railways Act on the ground's that the plaintiff had not declared the value of the goods as he was legally bound to do at the time of the consignment and that notice under Section 77 of the Indian Railways Act had not been properly served. The learned Munsif in the trial Court without going into the merits of the case held that the suit as framed was not maintainable. He also found against the plaintiff on the objections under Sections 75 and 77 of the Indian Railways Act. In this view he dismissed the plaintiff's suit. There was an appeal by the plaintiff to the learned District Judge of Bankura who considered the first question only, namely, whether the frame of the suit was defective and being of opinion that the intention of the plaintiff was to, sue the Railway Company he directed the plaint to be amended and the suit to proceed. The learned District Judge did not consider the decision of the trial Court under Sections 75 and 77 of the Indian Railways Act. In the view which the learned Judge took he set aside the decree of the trial Court and passed the following order: "The case will go back to the lower Court for amendment of the title of the defendant Company and for a fresh trial. The costs of the Court will abide the result of the suit. The Court fee paid on the memorandum of appeal should be returned to the appellant." Against this judgment the appellant has preferred this appeal and S. A. 1016 of 1924. It is argued on behalf of the respondent that this order not being an Order under Order XLI, Rule 23, is not appealable and therefore this appeal is incompetent. It is further argued that the decision of the first Court dismissing the plaintiff's suit was not a decision upon a preliminary point. It is apparent that that Court did not enter into the merits of the case, but held that the plaintiff's suit could not proceed because of the defect in the description of the defendant; and it also found that the suit was barred under Sections 75 and 77 of the Indian Railways Act. The decision of that Court must be taken to be a decision on a preliminary point and the remand order of the lower Appellate Court was one under Order XLI, Rule 23, C. P. C. Moreover, it has been held that though an order of remand passed by the Court of Appeal below may not be in strict accord with the provision of Order XLI, Rule 23 read with Order XLIII, Rule 1(u), if the order of the Appellate Court purports to be an order under Order XLI, Rule 23, an appeal will lie from such an order. Strictly speaking the order passed by the learned Judge is not in conformity with Order XLI, Rule 23, but it is manifest from the form of his order that he purported to pass it under Order XLI, Rule 23. One of the orders that he passed is that the Court-fee paid on the memorandum of appeal should be returned to the appellant and such an order can only be passed under Section 13 of the Court Fees Act in a case where the remand is made under Order XLI, Rule 23. It has further been held that an order passed by the Appellate Court in the exercise of its inherent jurisdiction, which it possesses, as held in the Full Bench case of Ghuznavi v. The Allahabad Bank Ld. (1917) I. L. R. 44 Calc. 929. is an appealable order even though it may not come within the scope of Order XLI, Rule 23, Bhairab Chandra Butt v. Kali Kumar Dutt (1922) 37 C. L. J. 491. and Radha Krishna v. Kamal Kamini (1922)35 C. L. J. 345. In this state of the authorities, I am of opinion that the appeal is competent. Even if there are any doubts as to the maintainability of the appeal in such cases the memorandum of appeal may be treated as an application under Section 115, C. P.C., where we are satisfied that the order passed by the Lower Court is not in accordance with law.

3. Now I come to the merits of the appeal. It has been, observed that the trial Court found against the plaintiff and held that the suit was not brought against the proper party and it is therefore not maintainable. It is not questioned before us that the description of the defendant as appears from the plaint is not strictly in accordance with law. It cannot be disputed that the frame of the suit is in contravention of the provisions of Order XXIX, Rule 1 and Schedule A to the Civil Procedure Code and that it should have been brought against the Railway Company. In the case of Indian General S. N. and R. Coy., Ltd. v. Lal Mohan Shaha (1915) I. L. R. 43 Calc. 441. the suit was brought against two Companies through a certain person who was named as the joint agent of two companies. It was held that the frame of the suit was in contravention, of Order XXIX, Rule 1. But it is argued by the respondent that the plaintiff should be allowed to amend the plaint and to constitute the suit in accordance with the provisions of law. It appears that the plaint was filed on the 28th October, 1922. The written statement on behalf of the defendant was filed on the 2nd January, 1923. In paragraph 2 of the written statement the defendant pleaded that the suit as framed was not maintainable. On the 12th June, 1923 the hearing of the evidence and the arguments of the pleaders were finished and judgment was reserved. Thereafter on that day the plaintiff filed a petition for amendment of the plaint. The learned Munsif rejected It on the ground that the prayer could, not be allowed at that stage. From these facts it cannot be said that the mistake that was committed was an accidental one. The plaintiff adhered to his case that the suit as framed was in proper form until after the arguments of the pleader of the defendant when he was convinced of his mistake and put in an application for the amendment of the plaint.

4. Besides the objection that the plaintiff did not ask for any amendment of the plaint in time, there is another objection on the ground of limitation. It is conceded that the effect of now bringing the Railway Company on the record will be the addition of a party to the suit and Section 22 of the Indian Limitation Act will apply. The respondent, however, argues that the amendment sought was not to add a fresh party to the suit but to remove the misdescription of the defendant in the plaint. The real question therefore is whether the present case is a case of misdescription of the defendant or whether the amendment would practically add a party to the suit. On the authorities there is no room for controversy that the suit as framed is not maintainable. In the case of Ramdas Sein v. Cecil Stephenson and Anr. (1868) 10 W. R. 366. The East Indian Railway Company was sued in the name of its Deputy Agent. It was held that the suit was bad and could not proceed in that form as the plaint did not disclose any cause of action against the defendant. This decision was followed in the case of Nabin Chandra Pal v. Cecil Stephenson (1871) 15 W. R. 534. There also the same mistake occurred. It was held that the suit could not proceed against the defendant. An attempt was made in that case to amend the plaint by bringing proper parties on the record. The learned Judges rejected the prayer on ground that the Railway Company was no party to the suit and it could not be said that the Railway Company was likely to be affected by the result of the suit; and further under Section 73, Act VIII of 1859 it was not imperative on the Court to admit parties to the record ; it was discretionary to allow amendment and it was justified in not allowing the amendment at the stage at which it was asked.

5. These cases are tried to be distinguished from the present case on the ground that in those cases the defendant was sued by name as representing the Railway Company, whereas in the present case the defendant is not named but described only as agent of the Railway Company. In the case of Indian General Steam Navigation and Railway Company, Limited v. Lal Mohan Shah (1915) I. L. R. 43 Calc. 441. to which reference has been made, amendment was sought and allowed on the ground that as it was within time it would not affect the statute of limitation. Their Lordships observed thus: "In the circumstances of this case as no question of limitation arises even if the suit be taken to have been instituted against the two Companies on the date when the plaint was amended we are of opinion that the amendment may stand." From this observation it is clear that if the amendment was not asked for within the period of limitation the prayer could not be granted. In the present case there is no question that the application for amendment was made after the statutory period. All the cases on this point were considered by the Patna High Court in the case of East Indian Railway Company v. Ram Lakhan Ram (1923) I. L. R. 3 Pat. 230. which is on all fours with the present case and where all the points arising in this case were discussed and answered in the way in which we propose to answer them in this case. Das, J., in his lucid judgment after quoting the words of Mookerjee, J. in the case of Indian General Steam Navigation and Railway Company, Limited v. Lal Mohan Shaha (1915) I. L. R. 43 Calc. 441 ,said as follows:" I read the decision of Mookerjee, J. as containing a strong intimation to the effect that amendment would not have been allowed if any " question of limitation arose in the case." In that case the defendant was named ' Agent of the East Indian Railway Company.' Subsequently the plaintiff sought to substitute the Railway Company for the defendant originally sued. The learned Judge remarked: "When there were two known persons in existence and the plaintiff brings the suit against one of them and afterwards applies to have the other brought on the record as a defendant on the ground that he all along intended to sue the other and that in substance he sued the other and no question of representation arises in the case, it is impossible to maintain the view that the case is one of mis description." I fully agree with this observation. On behalf of the plaintiff respondent much reliance has been placed on the decision in the case of The Saraspur Manufacturing Company, Ltd., v. B. B. & C. I. Railway, Company (1923) I. L. R. 47 Bom. 785. This case has been distinguished in the Patna case; and without accepting the correctness of that decision it may be distinguished from the present case on the following-ground. In the suit brought in the Bombay case the defendant was stated as the agent of the Railway Company. But the Railway Company appeared, tiled a written statement and raised several pleas in defence. They also objected that the plaintiff's suit should not lie as it was filed against the defendant's agent. Some of the observations on which the decision in that case is based, are that the defendant Company not only knew perfectly well that the various claims had been made against it, but also considered itself the party being sued. If the Company was not a party, no appearance should have been entered. Then again; " though the description of the Company may not have been that which is in conformity with the Schedule A to the Code of Civil Procedure, nevertheless the Company was substantially on the record"

6.

"The Company was in substance the defendant at the time the plaint was first filed and it was not a case adding a new party, in which case, considerations of that kind might be relevant."

I might hold the same opinion on the facts of that case. But here the defendant at the very outset took objection to the frame of the suit and the Company has not appeared or defended the suit. I hold that it is not a case of misdescription but if the amendment is allowed it will have the effect of adding a new party to the suit, and Section 22 of the Limitation Act will apply.

7. Another case has been referred to by the respondent, viz., the case of Nistarini Dasya v. Sarat Chandra Majumdar (1915) 20 C. W. N. 49. I had occasion to refer to that case in a recent judgment, with reluctance to follow it and tried to distinguish it, but that decision has no bearing on the present case. The view which the learned Judges took in that case was that the real plaintiff in the suit was the son and that suit as originally framed was for the benefit of the real plaintiff; and therefore they thought that by the amendment of the plaint by bringing the real plaintiff on the record there was substantially no change in the frame of the suit.

8. On the above considerations I am of opinion that the plaintiff's suit as brought is incompetent and must be dismissed.

9. The order of the lower Appellate Court is also open to criticism on the ground that the Court was not justified in remitting the case to the trial Court after setting aside its decision on one of the points decided by it. The learned Judge should have gone into the questions decided by the first Court under Sections 75 and 77 of the Indian Railways Act. But as in my judgment the suit is defective and must be dismissed, I do not consider this point any further.

10. The result of the foregoing conclusion is that this appeal is allowed, the decree of the lower Appellate Court set aside and that of the Court of first instance restored with costs.

11. It is not necessary to pass any order in second Appeal No. 1016 of 1924.

Duval J.

12. I agree with the judgment my learned brother has just delivered. It appears to me that there are only two points in this case---the first is whether there is an appeal, and the second is whether as a matter of fact, in the circumstances of this case, the application to substitute the Company for the agent filed at such a late stage can legally be allowed.

13. As to the first point, it appears to me to be perfectly clear that whatever else the learned District; Judge might have decided he really intended to decide only one point, namely, the preliminary point; and it is also clear that the learned Munsif in the first Court did only decide the preliminary point; that is to say, he took no evidence of the fact as to whether there was any loss occasioned to the plaintiff. I hold therefore that an appeal does lie, to this Court against the order of the District Judge.

14. As to the second point, the weight of all the authorities is to the effect that substitution cannot, be made at a late stage of the case. I had the plaint and written statement read to me and it appears quite clear that this objection was taken at the very first stage of the case. No attempt was made to rectify the mistake till at the very last stage of the case; and the first Court was right in dismissing the application. All the authorities except the decision in the case of the Sarasspur Manufacturing Coy. Ltd. v. B. B. & C. I. Railway Company (1923) I. L. R. 47 Bom 785. are in favour of this view. In the Bombay case, however, permission for substitution was given owing to the special circumstances of the case which do not apply to the present case. I refer to this case because the learned Advocate for the respondent rested on it his whole argument to justify the order of the District Judge. In this view I agree that the appeal must be allowed, the order of the District Judge vacated and that of the Munsif restored with costs of all Courts.

15. It is not necessary to pass any order in S. A. No. 1016 of 1924.