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Report No. 89

IV Misdescription

21.24. Railways and the issue of misdescription.- We now turn to cases of misdescription of parties. The Railway Administration being the largest network of public utility, a number of cases are filed against the Railways for tort or breach of contract, arising out of their function as carriers of goods and passengers. Owing to inadvertence of the counsel, the suits against Railways often contain a misdescription of parties and prayers for amendment to correct the misdescription have been agitated right upto the higher courts.

21.25. Case law.- In a Calcutta case1, the suit was against the Railways for non-delivery of certain goods. In the plaint, the name of the defendant was given as "Agent of the Bengal Nagpur Railway Saheb Bahadur". An objection was taken that the frame of the suit was bad, being in contravention of the provision of Order 29, rule, 1 and Appendix A to the Code of Civil Procedure, 1908. The plaintiff applied for leave to amend the plaint. Reliance was placed on a decision2 in which the Bombay High Court had (under similar circumstances) allowed the correction of the clerical error.

However, the Calcutta High Court refused to allow an amendment and distinguished the Bombay case by observing that even though, in the Bombay case, there was a misdescription in the title of the suit, the plaintiff therein had made sufficient averments to make it known to the defendant that he was seeking relief against the Railway administration, and not against the Agent.

1. Agent B.N. Rh,. v. Behan foal Dun, AIR 1925 Cal 716.

2. Saraspur Mfg. Co. v. B.B.&Cl. Rly., AIR 1923 Bom 452.

21.26. Same fate was met by the plaintiff in a Patna case1. But the Madras High Court2 held that a notice claiming damages for loss of goods in railway transit which was sent to the Member-in-charge of the Railway Board was good and the misdescription in the plaint was allowed to be corrected. The court quoted from the Report of the Civil Justice Committee regarding the proper function of procedure:

"Procedure is the machinery of the law after a.-the channel and means whereby law is administered and justice reached. It strangely departs from the proper office if in place of facilitating it is permitted to obstruct and even to extinguish the legal rights and is thus made to govern where it ought to subserve."

1. East India Rly. Co. v. Ram Lakhan, AIR 1925 Pat 37.

2. G.G.-in-Council v. Sankarappa, AIR 1953 Mad 838.

21.27. Deity.- Apart from cases involving Railways, a misdescription can also take place while filing a suit against a deity. In a Calcutta case,1 where a suit for possession was filed against the shebait and there was nothing in the plaint to indicate that the plaintiff was proceeding against the deity and not against the shebait, it was held that section 22 of the old Limitation Act of 1908 applies and so far as the deity was concerned the suit was barred.

1. Pravakar Roy v. Bibuti Bhushan, AIR 1957 Cal 177.

21.28. Summary of the positi.-no change recommended as to misdescription.- A review of the above case law shows that the courts, in their anxiety to see that a plaintiff does not get non-suited merely because of bad drafting of the plaint, have been scanning the entire plaint to see whether the averments therein manifest, at some place or the other, the person who has been really the plaintiff.

Here again, this exercise may prove to be futile in the case of a plaintiff who (no doubt, erroneously) believes that suing the Manager or Agent of the Railway is tantamount to a suit against the Railway administration, or that filing a suit against the shebait or pujari of the temple is equal to filing a suit against the religious institution (i.e. the institution of which the natural person is shebait or the pujari). However, it would be an arduous task to re-draft the proviso to section 20(1) so as to include cases discussed above. Ultimately, it will have to be left to the good sense and judgment of the courts as to when the proviso should be pressed into service.

The Limitation Act, 1963 Back

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