1. One Kisanlal filed the present suit on 29th November 1938 as the sole plaintiff on the basis of a pro-note, dated 27th November 1933 executed by the defendant in favour of Gowarjabai. For the purpose of bringing the case within limitation he relied on payment of interest in the handwriting of the defendant on 7th December 1935. When the defendant pointed out that he had no dealings with Kisanlal and that the pro-note in suit was one in favour of Gowarjabai, the plaintiff Kisanlal realized his mistake and on 17th July 1939, Kisanlal disclaimed interest in the suit and Mt. Gowarjabai came forward claiming substitution in place of the wrong plaintiff. The Court following the decision of this Court reported in 31 NLR 91 permitted the substitution on 17th July 1939. After the substitution the defendant urged that Gowarjabai, the real plaintiff, sued him on 17th July 1939 for the first time but on this date the claim was barred by time even if it be held that there was payment of interest on 7th December 1935 and the suit was liable to be dismissed as barred by time. It was argued on behalf of the plaintiff that the suit by Gowarjabai was not barred as Section 22 of the Limitation Act, does not apply to a case when a plaintiff is substituted in place of the wrong plaintiff who filed the suit originally within time under a bona fide mistake. The Court below came to the conclusion that Section 22 of the Limitation Act, was applicable to such a case and dismissed the suit as barred by time.
2. The present application for revision is filed against this decision. At the hearing counsel for the applicant argued that the suit was originally filed by Kisanlal as benamidar for Gowarjabai and it must be held that it was a suit by Gowarjabai from the very beginning and the claim was within time.
3. This plea of benami nature was never advanced in the Court below. In the plaint it was stated that the defendant borrowed Rs. 400 from Kisanlal, the original plaintiff, and executed a pronote in his favour on 27th November 1933 and therefore Kisanlal sued on the basis of the said pro-note. When defendant pointed out that his dealings were with Gowarjabai and he executed the pro-note in suit in her favour and had made payments to her, the original plaintiff Kisanlal realized the mistake and applied to the Court on 17th July 1939 requesting it to permit him to with draw from the suit as he had no interest in the pronote and that Gowarjabai be substituted in his place. Gowarjabai also applied for the same. Kisanlal in his application pointed out how the mistake occurred. He stated that he received interest on the pro-note on behalf of Gowarjabai and thought that the pronote was in his name. Gowarjabai in her application made it clear that Kisanlal had no interest in the pronote and it was at her instance that he once realized interest as her agent, but he had no authority to file the suit on her pro-note and that she was the only person really entitled to sue. Both Kisanlal and Gowarjabai admitted in their applications that Kisanlal had no cause of action and was a wrong plaintiff and that substitution of Gowarjabai was necessary and should be permitted. It is thus clear that Kisanlal never purported to act as the benamidar of Gowarjabai in instituting the suit and had no authority on her behalf to do so. The pronote is admittedly in the name of Gowarjabai. There is thus no scope for the contention that Kisanlal originally sued as benamidar of Gowarjabai. He was a wrong plaintiff who filed the suit in his own name inadvertently and the Court below, following 31 NLR 9, allowed the real plaintiff to be substituted on 17th July 1939 as a new plaintiff. Section 22 of the Limitation Act, runs as under:
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 defendant is made a plaintiff.
4. Clause (2) of S. 22 does not apply but cl. (1) applies. Gowarjabai's suit shall be deemed to have been instituted by her on 17th July 1939 on which date substitution was ordered. It is not disputed that on this date the present suit was prima facie barred by time, but it was argued that as an amendment of a plaint, if allowed, relates back to the date of the original presentation, this amendment of the plaint by way of substitution of Gowarjabai's name in place of the original plaintiff Kisanlal would relate back to the date of the original presentation. This is an impossible contention in view of the express wording of Section 22 of the Limitation Act. This is not a case in which the plaintiff was originally misdescribed and after the period of limitation the description was corrected. It is possible to argue in such cases that the same plaintiff continued to sue and Section 22 of the Limitation Act, had no application. But in a suit on a pro-note, it is the rule that the person in whose name the pronote or negotiable instrument stands has to sue in his or her own name, and if a wrong person sued and after the period of limitation the right person is substituted, the suit, so far as the right person is concerned, shall be deemed to be instituted on the date of the substitution, and if it is barred on that date, it shall be dismissed: 33 Mad 1152 at p. 117, 58 Bom 536.3 Assuming that there was payment of interest on 7th December 1935 as alleged in the plaint, and that fell within Section 20 of the Limitation Act, the suit so far as the newly substituted plaintiff is concerned having been instituted on 17th July 1939, the same was clearly barred by time. The Court below was right in dismissing the plaintiff's suit as barred by time, and I dismiss the application for revision without notice to the other side.
D.S/R.K
5. Application dismissed.