Somji and Another v Singh (Civil Appeal No. 1 of 1944) [1944] EACA 12 (1 January 1944)

## APPELLATE CIVIL

#### Before THACKER. J.

# (1) HASSANALI s/o SOMJI, (2) SOMJI s/o RAJAN, Appellants (Original Defendants)

$\mathbf{v}$ .

## KISHEN SINGH. Respondent (Original Plaintiff)

### Civil Appeal No. 1 of 1944

Civil Appeal—Action for ejectment—Plaintiff not owner of plot—No title to sue -Wrong plaintiff-Bona fide mistake-Order 1 Rule 10-Amendment of plaint.

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The facts are sufficiently set out in the order below.

Held (16-5-44).—Where there has been bona fide mistake either of law or fact on the part of the plaintiff, in commencing an action in his own name when his wife should have been made the plaintiff, as being the owner of the plot, the Court ought to allow an amendment substituting the plaintiff's wife as the plaintiff, rather than put the parties to the possible expense of a fresh suit.

### Madan for Appellant.

Kapila for Respondent.

ORDER.—Upon his own showing in his evidence in examination in chief before the lower court the plaintiff said that his wife was the registered owner of the plot on which is built the house from which he sought to eject the respondents. He further said he was the manager and there is no evidence that he held a power of attorney from his wife entitling him to sue. In cross-examination the plaintiff said he had an interest in his plot but that he was not the owner of it.

In these circumstances it is clear that the plaintiff had no right or title to sue in the lower court. The point was not taken by defendant's advocate nor by the Court below and the appeal by the defendants before me is based on other grounds. Mr. Kapila has strenuously argued that the plaintiff has a right to sue. as he really is the beneficiary under a resulting trust. That may or may not be so, but before me is a procedural point, not a point of substantive law. Mr. Kapila has also cited Order 1 Rule 10 (1) as follows:

"Where a suit has been instituted in the name of the wrong persons as plaintiff, or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute to do so, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks fit,"

which is similar to that in the Indian Code of Civil Procedure. From the commentaries it seems that amendment may be allowed where there has been a bona fide mistake on the part of the original plaintiff, and the mistake may be either one of fact or law. Having regard to this rule, I think it will be better, rather than put the parties to the possible expense of a fresh suit, to allow the amendment by substituting the plaintiff's wife as the plaintiff, if she so consents. I do this and the respondent will pay the costs of the two days' hearing of the arguments before me upon the point whether the plaintiff was entitled to sue or not and of to-day's hearing.