Wadia, J.
1. In the year 1924 the plaintiffs were carrying on business as commission agents in the name of Bishamberdas Bodhraj in Bombay and in the name of Bishamberdas Mulraj at Hoshiarpur in the Punjab. Defendant No. 1 is the father of defendants Nos. 2 to 5 of whom defendants Nos. 3, 4 and 5 are minors. The plaintiffs originally alleged that defendants Nos. 1 to 5 were members of a joint and undivided Hindu family who carried on a joint family business at Hoshiarpur and Amritsar. They say that they acted as the pakka adatias for the defendants in J 924, and as such effected certain transactions on their behalf for the sale and purchase of silver for forward delivery, and they have filed this suit to recover a sum of Rs. 3,315-1-0 with interest from the defendants in respect of the said transactions. Defendant No. 1 denies that he carries on any joint family business with his sons or any one or more of them, and says that he had no dealings with the plaintiffs. Defendant No. 2 also denies that he and his father and brothers are members of a joint family or that he is carrying on a joint family business with any of them. In his written statement he says that he and his minor brother Girdharilal carried on business in partnership as cloth merchants since 1922 at Hoshiarpur; that the transactions in silver were his own personal transactions; and that he was a minor at the time the said transactions were entered into, and is therefore, not liable to the plaintiffs in respect of the same. The suit was on my board in July last year and was dismissed for want of plaintiffs' appearance. It was subsequently restored as against defendants Nos. 1 and 2 on August 12, 1930, when the names of defendants Nos. 3, 4 and 5 were ordered to be struck off. The suit came on for hearing before me on October 10 last as against defendants Nos. 1 and 2 only who were separately represented, and separate issues were raised on their behalf at that time. Counsel for the plaintiffs opened his case, and in the course of the opening a discussion ensued when counsel for defendant No. 1 stated that the defendants came from the Punjab where the entire law of joint family and joint family property according to the Mitakshara did not apply. Plaintiffs' counsel without admitting this contention applied for an amendment of the plaint by pleading in the alternative that the defendants were in any event liable to the plaintiffs as partners trading in the name and style of Chunilal Girdharilal. The application was opposed, but was allowed by me on certain terms. Under Order VI, Rule 17, of the Civil Procedure Code, the Court has a discretion at any stage of the proceedings to allow either party to alter or amend his pleadings in such manner and on such terms as may be just, if such amendment is necessary for the purpose of determination of the real questions in controversy between the parties. Accordingly, I allowed the amendment, and the plaintiffs were allowed to allege in the alternative that the defendants carried on business in partnership, and also to bring all the necessary parties on record in respect of this alternative plea. Defendants Nos. 3, 4 and 5 were again added as defendants in the suit because of this alternative claim, and the suit as originally filed against them on the basis of their being members of a joint and undivided Hindu family was ordered to be restored, without prejudice to any contention which they may raise on the ground of limitation. This reservation was expressly made by me, because as a rule no amendment is allowed by the Court where its effect will be to take away from a party a legal right which may have accrued to him by lapse of time.
2. The suit reached hearing last week when defendants Nos. 1 and 2 were again separately represented. Defendants Nos. 3, 4 and 5 are represented by Mr. Adhiya, the second Assistant Master of this Court, and on their behalf Mr. Adhiya submitted himself to the orders of the Court. Defendant No. 1 put in a supplemental written statement on January 12, 1931, which I allowed to be taken on file. He contends that the suit is barred by limitation, and accordingly raised additional issues in two of which defendant No. 2 joined. Counsel for defendant No. 1 then argued that the suit could only be deemed to have been instituted against all the defendants on the alternative ground of partnership from the date on which leave under Clause 12 of the Letters Patent was freshly granted to the plaintiffs, viz., on November 14, 1930, and that, therefore, the suit against the defendants including defendants Nos. 1 and 2 was barred by limitation. In view of this contention it is necessary for me to consider the effect of the amendment. In the case of Ramprasad v. Shrinivas : AIR1925Bom527 it was held that where a suit is originally brought against a firm in the name of the firm, but subsequently the title of the plaint is amended by substituting the names of the members of the defendant's family on its being brought out that the defendant is not a firm but an undivided Hindu family, the suit is not affected by the provisions of Section 22 (1) of the Indian Limitation Act, since there is no addition of parties but only a substitution in order to correct a misdescription. In the case before me the plaintiffs, however, amended the plaint not by substituting defendants Nos. 1 and 2 along with the other defendants as partners instead of members of a joint Hindu family firm, but by making an alternative claim, and they seek to hold the defendants liable either as members of a Hindu family firm or as partners.
3. As far as defendants Nos. 1 and 2 are concerned they have been on the record of this suit from the very commencement. If the suit had originally been filed against them alone, and the plaint amended in 1930, would the suit on the amended plea be barred against them The answer depends upon whether the amendment discloses an entirely new cause of action or only cures a defect that is or may turn out to be a misdescription. In the case of Ramprasad v. Shrinivas there was a misdescription because it was found that the members of the defendant firm were not partners in an ordinary partnership firm. In the case before me it was not found at the date of the amendment that defendants Nos. 1 and 2 were not members of a joint Hindu family but only partners, but the plaintiffs have sought to hold them liable in the alternative as partners on the same evidence. As a rule the Court refuses an amendment if the amendment introduces a totally new and inconsistent case which may require further evidence to be adduced by the opponent. But the plaintiffs' counsel conceded at the very commencement that he was not leading any other or separate evidence on the plea of partnership, but would submit that on the same evidence the Court would either conclude that the defendants were members of a joint and undivided Hindu family, or, in the alternative, partners. No new prayer has been added nor any new relief claimed. The effect of the amendment, therefore, so far as defendants Nos. 1 and 2 are concerned, was not to add new parties as defendants nor to alter the character of the suit, but to alter the ground of liability by making it an alternative one on which the plaintiffs sought to hold the defendants who were already parties to the suit liable. See Saminatha v. Muthayya I.L.R. (1892) Mad. 417 which was followed in Prosunno Kumar Sen v. Mahabharat Saha (1903) 7 C.W.N. 575 where an amendment changing the capacity in which the defendant was sued as heir to one in which he was sued as an executor was allowed though it was made after time. In Naba Kumar Chowdhury v. Higheazany I.L.R. (1924) Cal. 845 which follows the case of Prosunno Kumar Sen v. Mahabharat Saha, the plaintiff originally sued the defendant in his personal capacity, but later on after the expiry of the period of limitation amended the plaint by adding him in his capacity of an administrator also, and it was held that as the amendment made a change of form only and not of substance, the suit was not barred by limitation. The amendment was not barred as there was no change in the 'persona' of the parties to the suit but only a change in the basis on which the same parties were sought to be held liable. Leave under Clause 12 of the Letters Patent is no doubt a condition precedent to jurisdiction, but no fresh leave was necessary in this suit as far as defendants Nos. 1 and 2 were concerned on the question of partnership, for though nominally it became a new suit when they were sued in the alternative as partners, it is still in effect and in substance the same suit against them. In Rampurtab Samruthroy v. Premsukh Chandamal I.L.R. (1890) Bom. 93 to which my attention was drawn, the frame of the suit was entirely erroneous and the amendment proposed would have turned the old suit into an entirely new suit which would have to be substantiated by different evidence. Leave was freshly obtained in this suit because of the addition of defendants Nos. S, 4 and 5. They must be deemed to be newly added, for although they were on the record originally, their names were struck out, as I have stated before, and when struck out they were as good as not being there at all. Under Section 22 (1) of the Indian Limitation Act the suit as regards them must be deemed to have been instituted when leave under Clause 12 of the Letters Patent was freshly granted and they were again brought on the record. Section 22 refers only to the parties subsequently added, and the suit cannot fail as against the original defendants, merely because the plaintiffs may have lost their remedy as against the newly added defendants, unless such a result follows from the nature of the suit. When defendants Nos. 3, 4 and 5 were brought on the record in respect of the alternative plea of partnership the suit against them as members of a joint Hindu family was restored without prejudice to any defence of limitation they might raise as I have stated before. They have not raised any plea of limitation, because Mr. Adhiya has submitted himself to the orders of the Court, but under Section 3 of the Indian Limitation Act a suit instituted after the period of limitation prescribed therefore is liable to be dismissed although limitation has not been set up as a defence. In my opinion, therefore, the suit against defendants Nos. 3, 4 and 5 is barred by limitation.
4. [The rest of the judgment is not material to this report].