This was a suit brought to establish the title of Plaintiffs Nos. 4 to 8 in a 12 anna share of a putni taluk, and to set aside an auction sale of the said putni taluk on the ground that it was illegal, based on fraud, and without jurisdiction. The original Plaintiffs Nos. 1 to 3, who claimed to be entitled to a 1 anna share in the putni taluk, were afterwards made Defendants, and the suit continued at the instance of Plaintiffs Nos. 4 to 8. The sale took place on 1st Jaist 1310, B.S (corresponding to 15th May 1903) and the suit was filed on 5th October 1904, considerably more than one year after. The only point for our determination is whether the suit is barred by the law of limitation. The Munsif held that the suit was instituted, within one year from the date when Plaintiffs came to know of the sale, and that it was therefore not barred. In this he was not correct, as under Article 12 of Sch. II of the Limitation Act, 1877, time begins to run from the date when the sale is confirmed, or would otherwise have become final and conclusive had no such suit been brought. He did not expressly find that Plaintiffs were kept out of knowledge of the sale by the fraud of the Defendants, as required by sec. 18 of the Limitation Act. The District Judge took a different view. He pointed out that the cases referred to by the Munsif were not applicable to the present suit. He held that Plaintiffs had failed to show that they were entitled to the benefit of sec. 18 of the Limitation Act, and that as the suit was filed more than a year from the date of the sale it was out of time. It is true that in their plaint the Plaintiffs claimed exemption from the ordinary law of limitation on the ground that the Defendants had fraudulently kept them from knowledge of the sale, and they maintained that time only began to, run from Jaista 1311, when they came to know of the sale. This was a question of fact, which the District Judge has decided against the Plaintiffs and we must accept that finding on second appeal. The matter however does not rest there. Both Judges have omitted to notice that Plaintiffs Nos. 5 and 6 on the record were, and presumably still are minors. Primâ facie, therefore, their suit at all events could not be barred. This omission on the part of the District Judge was the more unsatisfactory as we understand that a petition was put in before him asking that, if necessary, the plaint might be amended, and we have an affidavit of the pleader who represented the Plaintiffs in the lower Appellate Court to the effect that he argued before the District Judge that the suit could not be wholly barred as some of the Plaintiffs were minors. Before us the learned pleader for the Respondents objected that no such plea could be argued unless definitely set forth in the plaint as required by the last para, of sec. 50 of the Civil Procedure Code, 1882. It was further urged that leave to amend the plaint under sec. 53 could not be granted in second appeal. There is nothing however in the Code itself to prevent this Court from adopting such a course, if it thought fit, in the peculiar circumstances of the case to do so. At the most it could be said that it would be unusual. We do not however think that there is any necessity to amend the plaint. When the Plaintiff or all the Plaintiffs are minors it is not usually necessary for them to plead exemption from the law of limitation, as prescribed by the concluding paragraph of sec. 50. The Court can and must see from the record that, being minors, against them time has not yet commenced to run. It is only when the minor is suing in a representative capacity that the time which has commenced to run against his predecessor-in-title may continue to run against him. So too where one or more of several Plaintiffs is or are a minor or minors if the provisions of sec. 8 of the Limitation Act apply (a point with which we shall presently deal) time would not have commenced to run against any of them, and it would scarcely be necessary to expressly claim exemption. The fact is patent on the record.

It may further be noticed that the penalty for non-compliance with the provisions of sec. 50 is not primarily, dismissal of the suit, but rejection of the plaint, a very different matter (see sec. 54). In the case of rejection the Plaintiff can, subject always to the law of limitation, bring a fresh suit (see sec. 56). The Respondents' pleader relied upon the case of Jogeshwar Roy v. Raj Narain Mitter. The head-note of that case is most misleading. Their Lordships did not in that case hold that under sec. 50, a Plaintiff cannot take advantage of any ground of exemption which has not been set up in the plaint. Still less did they hold that the Plaintiff could not in any; circumstances be allowed to amend his plaint. The question there was between two acknowledgments of liability. One the Plaintiff had pleaded but it was found to be insufficient for his purpose. In the Court of first instance [Binode Behary Mookerjee v. Raj Narain Mitter(2)], Sale, J., would apparently have given leave-to amend, in order that the Plaintiff might formally plead the later acknowledgment, but he found as a fact that there was not such an acknowledgment as would save him or he could then be allowed to plead. The Court of Appeal also found as a fact that there was no such acknowledgment. The question of amendment of the plaint, therefore, did not really arise, though their Lordships contemplated it as a possibility. This is a very different case. Here the Plaintiffs have pleaded exemption under sec. 18 of the Limitation Act a plea which was incorrect but unnecessary. Can it be seriously contended that a suit under such circumstances should be dismissed as barred by limitation, when on the face of it, it is not barred? The Courts are bound to apply the law of limitation to suits, whether it is pleaded or not, and to dismiss a suit which is apparently out of time. Conversely they are bound not to dismiss as barred a suit, which on the face of it is not barred. If it were necessary, we should be disposed to allow the Plaintiffs to formally amend the plaint. We however consider it unnecessary. We have sufficient details upon the record (except as to one minor point which we shall mention later) to enable us to dispose of the question of limitation. The only point of difficulty is as to the application of sec. 8 of the Limitation Act to a case like the present. If any one or more of the Plaintiffs could sue separately to set aside this sale, then it would obviously not apply as the Plaintiffs could not be called joint claimants within the meaning of the section, and the suit of the adult Plaintiffs would be out of time. The suit of the minor Plaintiffs could however proceed.

If on the other hand all the co-sharers must join in such a suit, and the suit would not be properly framed unless all were upon the record then it would seem that they would be joint claimants; that the discharge could only be given by all; and that consequently time would not run against any of them, until such discharge could be given, i.e, till both the minors had attained majority.

It is questionable how far sec. 8 can be applied at all to such a case as this. There is no discharge properly so-called to be given at all. The last clause too of the section, has been the subject of numerous decisions, the Judges taking very different views as to its precise meaning. It appears to us unnecessary to enter upon any such discussion, as in our opinion any one of the co-sharers could have brought the suit alone and it follows that sec. 8 has no application to this case.

In the first place sec. 14 of Reg. VIII of 1819 is clear. It says “it shall be competent for any party desirous of contesting the right of the zemindar to make the sale … to sue (him) for a reversal of the same, and, upon establishing a sufficient plea, to obtain a decree with full costs and damages.” The purchaser is to be a party to such suit, but that is the only provision as to parties. The Full Bench case of Unnoda Persad Roy v. Erskine was cited as an authority for the proposition that all the co-sharers must join as Plaintiffs and that unless they so joined the suit would not lie. That however is not what their Lordships decided. The suit in that case was a suit by one co-sharer in respect of his share alone and that was the suit, which was held to be bad in form: “He has in fact” said the learned Chief Justice, “sued in respect of part only of the cause of action.” The sale cannot of course be set aside in part but there appears to be nothing to prevent co-sharer suing alone to set aside the whole sale, especially if all the co-sharers were parties to the suit before the Court as in the present case.

For these reasons we hold that the suit at the instance of the two minor Plaintiffs would not be barred, though so far as the adult Plaintiffs are concerned it is out of time. There is however as regards the minors, one contingency, in which one or both of them also might be barred. That is if they or either of them were not actually co-sharers at the date of the sale, but sue as representing some adult co-sharer, who had died between the date of the sale and date of suit. Against such adult co-sharer time would have begun to run and the subsequent disability could not stop it. This is not very probable, nor does it appear from the record, but it is possible.

We accordingly allow the appeal and set aside the decree of the District Judge dismissing the whole suit and remand the suit to his Court for a trial upon the merits, regarding it as the suit of the minor Plaintiffs Nos. 5 and 6. The order dismissing the suit will stand as against Plaintiffs Nos. 4, 7 and 8. Before proceeding with the trial on the merits, the learned District Judge should satisfy himself that the minor Plaintiffs are suing in their own right and not as the representative of some adult co-sharer, who was alive at the date of the sale. If one be thus barred, and the other not, the suit can of course proceed at the instance of the latter. Costs will abide the result of the suit.

Case remanded.