A.M Koman Nair Petitioner. v. Kunhambu Moolacheri Nair And Another

These two revision petitions are preferred against two orders of the Subordinate Judge of South Kanara in O. S. No. 529 of 1928, District Munsif's Court, Kasargode, transposing the 2nd defendant as the 2nd plaintiff and permitting an amendment to the plaint. The suit was originally filed before the District Munsif of Kasargode against the 1st defendant, the plaintiff claiming to be an assignee of the representative of the lessor's interest, who was impleaded as the 2nd defendant. Ostensibly it was a suit for rent. The District Munsif found that it should properly 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 obtained no right to sue by the assignment. He accordingly dismissed the suit. In appeal the Subordinate Judge felt a doubt whether the plaintiff's suit was in fact a suit for rent or for damages and not being able upon the record to decide this himself he proposed to remand it, framing an issue which inquired whether the plaintiff's claim was one for damages for use and occupation or whether it was a claim for rent. Against this remand order a Civil Revision Petition was filed in this Court and the learned Judge, Madhavan Nair, J., who heard it, set aside the remand order, upheld the finding of the District Munsif and returned the case to the lower appellate Court for the disposal of the other issues arising in it. When it went back to the Subordinate Judge the two petitions out of which these revision applications arise were filed, namely, for the transposition of the assignor of the lease as the 2nd plaintiff and the amendment of the plaint in certain particulars. The question accordingly is whether these two orders require revision and as they are largely complementary in character they may be considered together.

So far as the amendment is concerned the main point taken is that it effected a change in the character of the suit, namely, from a suit for rent to a suit for damages for use and occupation. It is perfectly true that a perusal of the plaint lends much colour to this objection, because in paragraph 8 it is stated that the 1st defendant has not paid certain arrears of rent and that the 2nd defendant had transferred to the plaintiff the right to recover them. But it so happens that the question of the real nature of the suit has already been investigated and decided at a prior stage of this litigation. I have said that the Subordinate Judge appeared to be in some doubt upon the point. When the case came before Madhavan Nair, J., he devotes a greater part of his judgment to discussing the matter and his conclusion is summarised as follows:

“Having regard to the pleadings in the case, there can be no doubt that the plaintiff's claim was one for damages for use and occupation and it was dealt with from that standpoint in the first Court.”

The only meaning I can attach to that is that the plaint, properly construed, supports the view that the claim was of that character. Such a claim of course differs from a claim for rent in respect at least of the question of occupation. It is necessary to prove that the person made liable for damages was in occupation of the property whereas a claim for rent under a lease does not necessarily involve any such issue. It is pointed out however that in point of fact the question of possession has been gone into at the trial in respect of issue No. 9, namely, whether the 1st defendant as he alleged surrendered the property and validly surrendered it. If he did not surrender it the only alternative was that he remained in possession after the expiry of the lease and during the period for which the damages were claimad. The learned District Munsif held upon this issue that the surrender was not bona fide and was therefore invalid. I do not think accordingly that any issue which was necessary for the decision whether damages were payable has been omitted in this case. In this respect the case differs from that which was dealt with by Jackson, J., in Veerabhadra Thevan v. Sri Vaithinathaswami Koil Devasthanam , the question of possession not having arisen for decision in the suit which was originally for rent and which had been allowed to be converted into one for damages for use and occupation.

The other substantial point is whether the transposition of the 2nd defendant should have been allowed in view of its effect upon the question of limitation. The lease expired in 1925 and the claim for damages must have been made in the case of the two successive years involved in 1928 and in 1929 respectively, whereas the application for transposition was not made until 1932 by which time of course a suit by the transposed plaintiff would have been long out of time; because it has been decided in Chengiah v. Rajah of Kalahasti (2) and other cases that Art. 115 applies to such a case. The matter however is not on the same footing as would be the addition of a plaintiff not already upon the record. S. 22 (1) of the 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 a 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 would 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 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 or the assignor. Such a case does not, I think, come within the general statement of principle by the Privy Council in Soona Mayna Kena Roona Meyappa Chitty v. Soona Navena Suppramanian Chitty , 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”. Here there is no question of avoiding the ordinance of limitation because that ordinance itself enables the Court to take such action irrespective of limitation. In two Patna Cases Surajman Prasad Misra v. Sadanand Misra and Devji Goa v. Tricumji Jivandas (3), instances of this description have been considered with special reference to the effect of S. 22. The former of these two cases involves the substitution as plaintiff of the holder of a promissory note for the beneficiary who originally brought the suit. Discussing the effect of limitation the learned Judges say:

“The legislature has, by enacting Sub-Cl. (2) of S. 22 of the 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, provisions of Cl. (1) will not apply.”

It has been suggested that this only refers to pro forma defendants but the case just cited was not of that character and I do not think that this restriction can be read into the provisions of S. 22. Another case which is authority for the same position is Mool Chand v. Bhoop Singh (4). That was another case where the question arose as to the person in whom the right rested to the relief claimed in the plaint and it was held that not the original plaintiff but one of the defendants possessed the valid claim and accordingly transposition was permitted. There too it was argued that the suit would have been barred by limitation if reckoned from the date of the transposition. The learned Judges say that the argument is clearly in the teeth of Sub-S. (2) of S. 22 of the Limitation Act. It does not appear accordingly that the orders are characterised by any irregularity in the exercise of jurisdiction. On the contrary they will enable the person so entitled to recover from the defendant what appears to be a perfectly valid claim to the damages. For the petitioner it is said that opportunity should be given to file a further written statement. The Court below may if it thinks fit give an opportunity for this. The petitions are dismissed with costs, one set.

N. R. R.Petitions dismissed.