FIRST APPEAL No.69 of 2005 Against the Judgment & Decree dated 20.12.2004 passed by the learned Sub-Judge Ist, Darbhanga in Money Suit No.9 of 1998. ------- DINESH NARAYAN JHA & ANR ------------Plaintiff-Appellants Versus STATE OF BIHAR & ORS --------------Defendants- Respondents For the Appellant Mr. B.N.P. Singh, Advocate For the Respondent Mr. Anil Kumar Jha, Sr. Advocate, G.A.2 Dated : 19th day of August, 2010 P R E S E N T HON'BLE MR. JUSTICE MUNGESHWAR SAHOO ------------- J U D G M E N T Mungeshwar Sahoo, J. The plaintiff-appellants have filed this First Appeal against the Judgment and Decree dated 20.12.2004 passed by the learned Sub-Judge Ist, Darbhanga in Money Suit No.9 of 1998 dismissing the plaintiff-appellant’s suit. (2) The plaintiff-appellants filed the aforesaid money suit for a decree of Rs.2,39,966.07/-. The plaintiff prayed the aforesaid relief on the ground that in 1988 for the purpose of Bagmati Irrigation Scheme, the respondents entered into an agreement with M/s Kali Enterprises for filing of earth. According to the said agreement after finishing the work, the plaintiffs raised bills and the defendant No.6 on 15.03.1990 issued a cheque for Rs.1,25,264/- and on 16.03.1990, another cheque was issued for Rs.82,114/- total Rs.2,07,378/-. Both the cheques bounced so the plaintiff filed 2 C.W.J.C. No.5671 of 1992 before this Court. The said writ was disposed of on 23.02.1993 directing the defendant No.4 to consider the grievance of the plaintiff. A Liability Committee was constituted and the matter was referred to the Liability Committee. The Liability Committee by letter No.1611 dated 23.06.1993 recommended for allotment of amount but allotment was not made and thereafter the plaintiff filed M.J.C. No.1624 of 1993. (3) The further case is that the State Government directed for up-to-date measurement according to the recommendations of Liability Committee and to pay the plaintiff. On the basis of the said direction on 07.11.1993, measurement was done and 35 per cent less work was found in comparison to the measurement dated 20.07.1988. The M.J.C. application was disposed of on 23.06.1994 and the Chief Engineer gave a report to Engineer-in-Chief to the effect that the less work was found because of natural effect and specifically stated that had there been no stay, the total amount would have been paid to the plaintiff. In spite of the said recommendation, nothing was paid and the matter was referred to second Liability Committee. The said Committee also recommended for payment in full but the defendant No.2 paid only Rs.1,47,536/-. Thereafter, the plaintiff filed C.W.J.C. No.2921 of 1995 before the Hon’ble High Court which was dismissed and thereafter the plaintiff filed L.P.A. No.1584 of 1995 which was also dismissed on 04.07.1996. Thereafter serving notice under Section 80 C.P.C., the present suit was filed. (4) The defendants appeared and filed contesting written statement. Besides taking various legal please, mainly it was 3 contended that according to the direction of this Court in C.W.J.C. No.5671 of 1992 and as recommended by the Liability Committee, final measurement was done and accordingly Rs.1,47,536/- was paid in full and final settlement. The other allegations were denied. (5) On the basis of these pleadings, the following issues were framed by the learned trial Court : (i) Is the suit as framed maintainable ? (ii) Is the suit barred by limitation ? (iii) Is the suit barred by the principles of estoppels, waiver and acquiescence? (iv) Is the suit barred by resjudicata? (v) Whether the works done by the plaintiff was complete or not? (vi) Whether the valid notice has been served on the defendants as provided u/s 80 C.P.C.? (vii) Whether the plaintiff is entitled to receive Rs.2,39,966.07 paise as claimed by him? (viii) Whether the report of first liability committee and the second liability committee was based on facts and figures or it erroneous? (ix) Is the plaintiff entitled to the reliefs? (6) After trial, the learned court below by the impugned Judgment and Decree found that the plaintiffs are entitled to recover the arrear amount. The learned Court below also found that the plaintiff have claimed Rs.2,39,966.07/- whereas in the notice under Section 80 C.P.C., they have stated the arrear amount to be Rs.59,842 and the interest on it and, therefore, the learned Court below found that the plaintiffs are entitled to the amount of Rs.59,842/- and interest at the rate of 6 per cent per annum, however, the learned Court below while deciding Issue No.1 held that because only one partner has filed the suit, the suit is not maintainable because of the provision contained in Order 30 C.P.C. and therefore dismissed the suit. (7) The learned counsel appearing on behalf of the appellant 4 submitted that the learned trial Court has wrongly dismissed the plaintiff suit on technical ground although it was found that the plaintiff’s claim is genuine and moreover wrongly the learned Court below held that suit filed one partner is not maintainable. The learned counsel further submitted that Order 30 C.P.C. is enabling and not prohibitory. On these grounds, the learned counsel submitted that the impugned Judgment and Decree are liable to be set aside. (8) The learned G.A.2 appearing on behalf of the respondents submitted that the partnership firm itself was added during the course of hearing and, therefore, the suit will be deemed to have been filed on the date when partnership firm was added as plaintiff No.2. Therefore, the suit itself was barred by law of limitation. The learned G.A.2 next submitted that the learned Court below has rightly held that suit by one partner is not maintainable. (9) In view of he above contentions of the parties, the points arises for consideration in this Appeal are : (i) Whether the plaintiff-respondent was entitled for the amount decreed by the learned Court below. (ii) Whether the learned Court below could have dismissed the plaintiff suit under Order 30 C.P.C. and whether the impugned Judgment and Decree are sustainable in the eye of law. F I N D I N G S (10) Both the points are taken together for better appreciation of the case. According to the plaintiff case in 1981, the respondents entered into 5 separate agreement with the firm M/s Kali Enterprises for earth cutting. The work was to be completed within one month and the plaintiff completed the same 5 within one month. The work of the plaintiff was measured on 20.07.1988 and the bill was raised for Rs.2,35,657/-. In 1990 allotment was made and two cheques were issued for Rs.1,25,264/- and Rs.82,114/- respectively but because there was prohibition to pay it could not be paid by treasury so the cheque were bounced. Subsequently, after writ application Liability Committee was constituted which recommended for payment. P.W.1 has fully supported his case in his evidence. According to P.W.1, the Liability Committee recommended for allotment of Rs.2,35,657/- by terms of letter No.1611 dated 23.06.1993 but it was not paid. He has also stated that Chief Engineer wrote a letter to the Engineer-in Chief stating that because of 7 years different in measurement, it is quite natural that the work was discussed up to 35 per cent. P.W.2 is formal in nature. (11) It may be mentioned here that the defendants have admitted the fact of entering into 5 agreements with Kali Enterprises. The defendants have also admitted the issuance of cheque on 15.03.1990 for Rs.1,25,564/- and the cheque dated 16.03.1990 for Rs.88,114/-. They also admitted that because there was prohibition order in the treasury so the said cheque could not be paid. However, they tried to resist the claim of the plaintiff saying that according to the direction of this Court in C.W.J.C. No.5671 of 1992 and the Liability Committee measurement was done and payment has been made in full satisfaction. Let us consider whether the defendants are justified in making payment on the basis of measurement after 4.5 years and not relying upon the measurement done on 20.07.1988. Exhibit 3 is a letter written 6 by the Chief Engineer to the Joint Secretary, Govt. of Bihar recommending for full payment to the plaintiff. On the basis of recommendations made by the Liability Committee. The Liability Committee has stated that because of the measurement after four and a half year, the decrees of 35 per cent work is quit natural and then recommended for full payment. This recommendation is evident from Exhibit 3 (C). Exhibit 3 (A) shows that Superintending Engineer wrote a letter to Chief Engineer recommending for full payment to the plaintiff. Exhibit 3 (B) is a letter written by Chief Engineer recommending for full payment to the plaintiff. Exhibit 3 (G) shows that the Executive Engineer, Flood Control Division wrote a letter to the Superintending Engineer recommending for full payment to the plaintiff. From the above documentary evidences produced by the plaintiff. It is clear that the defendants have admitted the plaintiff claim and recommended for full payment because of the fact that the measurement which was done after 4 ½ years cannot be made basis for deducting the amount from the bill of the plaintiff. It is not the case of the defendant that the plaintiff has not completed the work rather they have admitted the issuance of earlier two cheques which were bounced only because of prohibitory order in the treasury. (12) In view of the above discussion I find that the claim of the plaintiff is genuine and the plaintiff is entitled for the decree as found by the learned trial Court. On these points, the finding of the learned trial Court is hereby confirmed. (13) So far Order 30 C.P.C. is concerned, it appears that originally the plaintiff No.1 only filed the money suit. In the plaint 7 it was specifically mentioned that the agreement was between the defendants and the firm M/s Kali Enterprises. However, by mistake the name of M/s Kali Enterprises was not added in the array of plaintiff. At the time of hearing the mistake was detected, therefore, an amendment application was filed which was allowed and M/s Kali Enterprises was added as plaintiff No.2. The learned Court below found that the suit by one partner is not maintainable and, therefore, dismissed the suit. (14) The learned G.A.2 submitted that on the date of presentation of plaint, M/s Kali Enterprises was not plaintiff and, therefore, the plaint itself was not maintainable and when plaintiff No.2 was added by amendment the suit was time barred because it will be deemed that the plaint was presented on the date when M/s Kali Enterprises was added as co-plaintiff. So far this contention is concerned, I do not agree with the learned counsel simply because on this ground the suit has not been dismissed and moreover from the pleading of the parties, it is admitted that the agreement was with the plaintiff No.2. It is mentioned in the plaint itself but because of bonafide mistake, the plaintiff No.2 was not added. In the facts and circumstances of the case, it appears that plaintiff No.2 could not be added because of bonafide mistake. And, therefore, plaintiff’s mistake was in good faith. (15) In similarly situated case, the Hon’ble Supreme Court in case reported in A.I.R. 1983 S.C. 271 (Munsi Ram Vs. Narsi Ram ) has held that the omission to implead as defendant was due to mistake and the mistake was made in good faith. Hence, proviso 21 (1) of the Limitation Act would apply and the suit could 8 be deemed to have been filed on the date when the plaint was presented. Moreover so far this question is concerned; the learned Court below finding it to be bonafide mistake allowed the amendment and added the firm M/s Kali Enterprises as plaintiff No.2. In another decision reported in A.I.R. 1988 Patna 138 (Ravindra Nath Biswas Vs. General Manager), this Court held that in view of the proviso to Section 21 (1) of the Limitation Act, the impleadment of union after the expiry of period of limitation could be deemed to relate back to the original date of the filing of the suit since the omission to include the party initially was due to bonafide mistake. It appears that in that case, the Union of India was added as party-respondent after limitation period, but it was found that since mistake was bonafide mistake, proviso to Section 21 (1) of the Limitation Act was applied and held that the addition will relate back to the original date of institution of suit. (16) In a decision reported in A.I.R. 1936 Calcutta 353 (Bhadreshwar Coal Supply Company Vs. Satish Chandra Nandi) the Division Bench of the Hon’ble Calcutta High Court has held that it is open to a partner of firm consisting of several partners to institute a suit in the name of the firm although the other partners refused to join in the suit. It appears that in that case also, one partner Manikalan Roy filed the plaint in the name of firm Bhadreshwar Coal Supply Company. It was held maintainable. (17) In another decision relying upon aforesaid decision (A.I.R. 1936 Calcutta 353) again the Calcutta High Court in the case of Ravindra Nath Sen Vs. First Industrial Tribunal reported in A.I.R. 1963 Calcutta 310 held that one partner 9 only may sue in the name of the firm. If the other partners do not object to his so doing. If they object, they may apply for indemnity against costs. (18) In view of the above discussions of the facts as well as law, I do not find any force in the submissions of the learned counsel for the respondent-State of Bihar. The learned Court below has not at all considered the law settled by the Hon’ble Supreme Court, by this Court, as well as by Hon’ble Calcutta High Court and found that suit filed by one partner is not maintainable. I, therefore, find that the suit in this case was maintainable and it is not barred under Order 30 C.P.C. and the learned Court below could not have dismissed the suit only on this ground. Accordingly, finding of the learned Court below on this issue is hereby reversed. (19) In the result, this Appeal is allowed and the finding of the learned Court below regarding Issue No.1 in paragraph 8 of the impugned Judgment is set aside and the finding on issue No.5, 7 and 8 are confirmed and the plaintiff suit is decreed accordingly. In the facts and circumstances of the case, the parties shall bear their own costs. Patna High Court, Patna Dated 19 th, August, 2010 AFR/ Sanjeev (Mungeshwar Sahoo, J.)