No Limitation.-In The Oriental Bank vs. Charriol, I. L. R., 12 Cal., 642, it was held that where the Court exercises the powers conferred upon it by the second clause of the section, limitation did not apply. And see Sohna vs. Khalak Singh, I. L. R., 13 Alla., 78, and compare Krishna vs. The Collector of Salem, supra.

Joint Plaintiffs.—In a suit on a joint contract all the parties must be added, whether the claim was barred against them or not, and if barred as against some of the joint plaintiffs, the suit must be dismissed-Ramsebuk vs. Ramlall, I. L. R., 6 Cal., 815; but if when the plaint is presented a person is named as one of the plaintiffs and he does not repudiate the suit, he must be considered as a party from the commencement of the litigation. Mohini Mohun vs. Bungsi, I. L. R., 17 Cal., 580. And the same rule applies if a necessary defendant has been added after time-Ramdoyal vs. Junmenjoy, I. L. R., 14 Cal., 791. A and his three brothers formed a joint Hindu family. A with their consent sued for a joint debt, and when an objection was raised on the ground of non joinder, it was too late to make the brothers co-plaintiffs. The suit was dismissed-Kalidas vs. Nathu, 1. L. R., 7 Bom., 217. See, however, Oma Sundari vs. Ramji, 9 C. L. R., 13. In a suit for pre-emption if the claim is barred against either vendor or vendee, it must be dismissed-Habibullah vs. Achaibar, I. L. R., 4 Alla., 145.

In Appeal.-If a person is a party to the suit, but not a party to an appeal from the decision in it, he can be made a party after the period for appealing has expired-Manikya vs. Baroda, 11 C. L. R., 430.

S sued R and N jointly for money. The first Court decreed the suit against N and dismissed it in regard to R. N appealed but S did not. At the first hearing of the appeal R was made a respondent, the period allowed to S to appeal having expired. The Appellate Court dismissed the suit as against N and gave S a decree against R: Held, that the Court was not competent to give S a decree against R, the former not having appealed within the proper period-Runjit Singh vs. Sheo Prosad, I. L. R., 2 Alla., 487.

Assignment-The proviso as to limitation does not apply where the original plaintiff having the sole interest assigns it to others after suit is brought-Suput Singh vs. Imrit, 6 C. L. R., 62.

Corporation Limitation does not apply where a Corporation is sued in the name of the wrong officer-Manni Kasaundhan vs. Crooke, I. L. R., 2, Alla., 296. The Poona Cantonment Committee is a Corporation-The Cantonment Committee vs. Barjorji, I. L. R., 14 Bom., 286.

Application.-An application may be ex-parte to add parties, Weekly Notes, 1876, p. 23; but not if it be to strike out or change the parties on the record-Tildesley vs. Harper, 3 C. D., 277. See, however, Horwell vs. London Omnibus Co., 2 Ex. D., 365, 379, 382-3. In the case of a plaintiff consent is necessary-Omasundari Dasi vs. Ramji, 9 C. L. R., 13; Umasundari vs. Ramji, I. L. R., 7 Cal., 242; but the section does not require that the consent of a person proposed to be added as plaintiff should be given in writing. It is sufficient if any solicitor consents on his behalf-Cox vs. James, 19 C. D., 55.

Who may Apply.-A person not a party may apply to be added-Athiappa vs. Ayanna, I. L. R., 8 Mad., 300; Oriental Bank vs. Charriol, I. L. R., 12 Cal., 642`; Bâbbaba vs. Noorjehan, I. L. R., 13 Cal., 90.

A plaintiff applying under this section to join another as co-plaintiff must have a cause of action. A company transferred all its property, estates, and effects with appurtenances, "including a mortgage with the benefit of all securities to a new company. At the date of transfer the old company claimed a right of action for breach of trust in respect of this mortgage. The new company sued; held, that the right of action did not pass to them; and as they had no right of action, they could not join the old company as co-plaintiffs-New Westminster Brewery vs. Hannah, Weekly Notes, 1876, p. 215; Dwarkanath vs. Grishchunder, I. L. R., 6 Cal., 827; Chunder Coomar vs. Gocool Chunder, I. L. R., 6 Cal., 370; Chinnan vs. Ramchandra, I. L. R., 15 Mad., 55; but see Manni Kasaundhan vs. Crooke, I. L. R., 2 Alla., 296.

Costs.-See in case of striking out parties-Amos vs. Herne Bay Pavilion, 54 L. T., 264.

Struck Out.-On the application of either party at or before the first hearing, the name of any person improperly joined may be struck out-Khadar vs. Chotibibi, I. L. R., 8 Bom., 616. A builder sued both the lessor and lessee for work and labour done. The lessor stated he had no interest in the action, and applied to have his name struck out. There was a dispute between the lessor and the lessee as to the liability: Held, the question could not be decided summarily, and the lessor's name must stand-Weekly Notes, 1875, p. 203; but where a merchant sued his solicitors for negligence, and their defence was that the negligence, if any, was that of A B, whom they had instructed, the name of A B was inserted in the Lower Court, but struck out in appeal - Lereculey vs. Harrison, Weekly Notes, 1876, p. 39. A share of a village held in usufructuary mort

gage was purchased at an auction-sale in execution against a shareholder, and sold by the auction-purchaser to plaintiff, who sued his vendor, mortgagor and mortgagee for possession on the ground that the mortgage had been paid off. It was held that the auctionpurchaser's name should be struck out--Syud Sukhawat Ali vs. Kesho Tewari, 6 Alla., 208. A sued B; C intervened, and was made a party. On appeal, the name of C was struck out and the suit remanded for trial. Held, that all the evidence C had produced should be removed from the record-Bucha Singh vs. Mirza Mashook Ali, 15 W. R., 572. A person who has an interest in a thing assigned to a trustee for the benefit of himself and others cannot sue the debtors of the estate, his remedy is to file a bill against the trustee to enforce execution of the trust - Sharpe vs. San Paulo Ry., 8 Ch. App., 610. Where a creditor of a deceased person sued the Administrator-General, and other persons also claiming against the estate were made parties on the allegation that they had realized and were in possession of assets of the estate of the deceased, it was held that there was nothing to show that such persons were in the position of an executor or administrator de son tort, or partners of the deceased, or that the Administrator-General could not sue them, and that there being no other circumstances which would make it equitable that they should be jointly sued with the Administrator General, they were wrongly made parties, and the suit ought to be dismissed-Dhunraj vs. Broughton, 15 B. L. R., 296; see also Oriental Bank vs. Gobindlall Seal, I. L. R., 10 Cal., 713.

Name struck Out, Effect of.-All the evidence produced by the party whose name has been struck out should be removed from the record-Bucha Singh vs. Mirza Mashook Ali, 15 W. R., 572. If when a name is struck out the Court has not jurisdiction to try the case the plaint should be returned to be presented in the proper Court-Shrindhar vs. Chima, 10 Bom., 17.

Joinder.--Courts should not dismiss a suit merely on account of defect of parties, but should exercise the discretion vested in them by this section-Ruchpaul vs. Johuree, 2 Agra, 147; Jonab Ali Mollah vs. Golam, 21 W. R., 187; Vydianadayyan vs. Sitaramayyan, I. L. R., 5 Mad., 52; Ahmedbhoy vs. Vulleebhoy, I. L. R., 8 Bom., 323; Van Gelder vs. Sowerby & Coy., 44 C. D., 374.

Benamidar: Real Owner Joined.-A suit by a benamidar, not the real purchaser, will not lie-Hari Gobind vs. Akhoy Kumar, I. L. R., 16 Cal., 364; but if the real purchaser be made a co-plaintiff, the suit should be allowed to proceed and not dismissed-See Sita Nath Shaha vs. Nobin Chunder Roy, 5 C. L. R., 103; Gopenath Chobey vs. Bhugwat, I. L. R., 10 Cal., 697; and "BENAMIDAR," section 26, ante. In a suit for rent, defendant pleaded non-liability on the ground that he was a benamidar, and that the jote belonged to A: Held, A should not have been made a defendant by the Court on its own motionMaharanee Surno Moyee vs. Bykunt, 25 W. R., 17.

Name Added, Effect of. In a suit to recover property from plaintiff's vendor, who did not substantially contest the claim, a person claiming the property was made a defendant. Held the plaintiffs having proved their title against the original defendant it was for the added defendant to prove his possesssion.-Balma Kundu vs. Adikunda, C. L. R., 560, following Juggodanund vs. Hamid, 10 W. R., 52, see, however, Ram Taruk vs. Radha Bullab, 15 W. R., 96; Bhyarubnath vs. Mohesh Chunder, 13 W. R., 196. Where a person is added evidence already on the record cannot be used against him without his consent-Watson & Co. vs. Hurgobind, 22 W. R., 35.

Plaintiff Objects.-In England, the rule is, that if the plaintiff objects to the third person being introduced, the Court would consider whether the plaintiff would be prejudiced in any way, or delayed in his action by such proceeding. The object of these enactments was to prevent the same question being tried twice over where there is any substantial question common as between the plaintiff and defendant in the action, and as between the defendant and a third person, and in such a case the third person is to be cited to take part in the original litigation, and so to be bound by the decision on that question once for all. And the point really is whether there is such a question in the present case, which can advantageously be tried and decided, not only as between the plaintiffs and the defendants, but as between the defendants and the third party"-The Swansea Shipping Co., Limited vs. Duncan, Fox & Co., 1 Q. B. D., 644. And in Bower vs. Hartley, ibid, 652, Mellish, J., said "If there is a material common question which it is important to have tried once for all, the Court has power to make an order that a third party shall be bound by the trial of that particular question, even though he is not interested in the whole subject-matter of the action. But this power is a discretionary one, and in the exercise of its discretion the Court ought to consider whether the plaintiff's interests will be prejudiced or affected, and, if the plaintiff will be prejudiced or delayed, the power ought not to be exercised." And James, L. J., said :-"I think that the convenience of having this question determined once for all in this action is not enough to outweigh the injury to the plaintiff which may result from the introduction of the third parties." In an action for collision against a tow, the defendant was not allowed to join the tug-The Bianca, 8 P. D., 91.

Defendant be made Plaintiff.-In a partnership suit for account in which there were twenty-one defendants, plaintiff having settled with most of them, wished to withdraw. Two of the defendants applied that they should be made plaintiffs, and the plaintiff a defendant. The application was granted-Edulji vs. Vullebhoy, I. L. R, 7 Bom., 167.

At any Time. The words in Act VIII, 1859, section 73, "at any hearing of a suit," have been omitted; and application under this section may now be made before hearing. Under Act VIII, section 73, it was held that where the Judge in appeal considered a party was necessary as respondent, he should act under this section and not dismiss the suit-Achumba Pauray vs. Ram Sahoy Pauray, W. R. 1864, p. 136; and this is the present practice-Thirthasami vs. Gopala, I. L. R., 13 Mad, 32; and in one case in special appeal the High Court added a party after the suit had been dismissed -because the person who brought it had not a certificate under Act XL of 1858 -Madhub Chunder vs. Busktessuree, 12 W. R., 102. Where the receiver of an estate, under permission of the Court, and on behalf of the parties interested in the estate, brought a suit by mistake in his own name, it was held in appeal that the receiver having full power to institute the suit, and no objection having been taken in the first Court, the error could be rectified without the consent of the persons interested, and that no further notice of appeal was necessary-Juggunnath Pershad vs. Hogg, 12 W. R., 117; and where a decree had been passed referring the suit to the Commissioner to take an account and sell the property, the Court held that it had power to add fresh parties to the suit-Vakatchand vs. Advocate-General, 8 Bom., 96; sec Ahmedbhoy vs. Vulleebhoy, I. L. R., 8 Bom., p. 336; but where a District Judge dismissed a suit with costs, and after an appeal had been preferred, he found on enquiry that others were interested, and making them parties, ordered that their names should be added to the decree for costs, his order was set aside, as there was no case pending before him-Ram Nidhee vs. Ajoodhya, 20 W. R., 123. In special appeal in the case of a minor the High Court struck out her name and changed it to defendant-Krishnabhi vs. Sonabha, 2 Bom., 310. But, as a rule, amendment should not be allowed at a late stage of the caseLondon and Bombay Bank vs. Bhanji, I. L. R., 2 Bom., 116; though the Court is not prevented by the Limitation Act from making the order at any time-Oriental Bank vs. Charriol, I. L. R., 12 Cal., 642. See note under section 34, post.

After Decree.-Where an applicant possessed an eight-anna interest in the suit, his name was added after decree-Singamal vs. Chenna, I. L. R., 6 Mad., 227; and where in execution of decree against a Hindoo widow as representing the estate, a claim was made on behalf of an adopted son, it was decided that he should be made a party-Sotish Chunder vs. Nil Comal, I. L. R., 11 Cal., 45; distinguished in Subhanna vs. Venkato Krishnan, I. L. R. 11 Mad., 408; Akoba Dada vs. Sakharam, I. L. R., 9 Bom., 429. See also Hurst vs. Hurst, 21 C. D., 289; Attorney-General vs. Corporation of Birmingham, 15 C. D., 425; Campbell vs. Holyland, 7 C. D., 166. See note on section 372, post, and the cases cited in Ahmedbhoy vs. Vulleebhoy, I. L. R., 8 Bom. 323, p. 330. But this procedure is not necessary in all cases, and if a minor adopted son is bound by a decree, execution may be rightfully sought against him through his guardian, and it is no answer that his name is not on the record-Hari Saran vs. Bhubaneswari, I. L. R., 16 Cal., 40; and compare Mungiram vs. Gurliakut, I. L. R., 17 Cal., 347; and in no case can a person who has acquired a title after judgment be added in execution-Goodall vs. The Mussoorie Bank, I. L. R., 10 Alla., 97.

Appeal. One of several plaintiffs can appeal making those who decline to concur respondents-Beckett vs. Attwood, 18 C. D., 54.

Appeal-Revision -An appeal lies from any order under this section striking out or adding the name of any person as plaintiff or defendant, but not from an order refusing to make a person a party-Karman Bibi vs. Misri Lal, I. L. R., 2 Alla. 904; Abirunnisa vs. Komurunnisa, I. L. R., 13 Cal., 100; and from an order making a plaintiff defendant-Lukshmana vs. Paramasiva, I. L. R., 12 Mad., 489; but where there is no appeal the order must be attacked under section 591, post, in appeal from the final decree Googlee Sahoo vs. Premlall, I. L. R., 7 Cal. 148, and then only if the order has affected the decision on the merits or the jurisdiction of the Court-Ridhnath Sahoy vs. Gopee Sahoy, 14 W. R., 90; Har Narain vs. Kharag, I. L. R., 9 Alla., 447.

If no objection is raised in the original or first Appellate Court, the order cannot be made the subject of a special appeal-Rakhal Doss Mondal vs. Pertab Chunder, 12 W. R., 455; Beer Chunder Roy vs. Tumezoodeen, 12 W. R., 87; Shaikh Lall Mahomed' vs. Shaikh Peer Musur, 18 W. R., 112; and possibly if the order is not objected to at first, it cannot be contested in regular appeal-Kewul Sahoo vs. Issur Dyal, 12 W. R., 334.

In a suit for rent the defendant alleging that a person not a party had a jointinterest with the plaintiff got his name put upon the record against the wish of the plaintiff: Held, in special appeal, that if added at all it should be as defendant-Googlee Sahoo vs. Premlall Sahoo, I. L. R., 7 Cal., 148.

Revision.-An order to strike out not being ultra vires, no action can now be taken under the Charter Act-Judooputtee vs. Chunderkant, W. R., 309; nor if based on an erroneous construction of the section is it subject to revision under section 622, postRabbaba vs. Noorjeehan, I. L. R., 13 Cal., 90.

Where defendant added, plaintiff to amend.

33. Where a defendant is added, the plaint, if previously filed, shall, unless the Court direct otherwise, be amended in such manner as may be necessary, and an amended copy of the summons shall be served on the new defendant and the original defendants.

Judicature Acts, Order 16, Rule 13. This section applies to H. C. and P. S. C. C. It has been decided that the corresponding rule in England is not applicable to an application to add a new defendant in a consolidated action-In re Wortley, 4 C. D., 181.

jections as to non-joinder or mis-joinder.

34. All objections for want of parties, or for joinder of Time for taking ob parties who have no interest in the suit, or for mis-joinder as co-plaintiffs or co-defendants, shall be taken at the earliest possible opportunity, and in all cases before the first hearing; and any such objection not so taken shall be deemed to have been waived by the defendant.

See Order 16, Rule 12. This section applies to H. C. and P. S. C. C.

Earliest Time -Objection for want of parties should be taken at the earliest opportunity and before the first hearing-Rajnarain Bose vs. Universal Life Assurance Co., I. L. R., 7 Cal., 594; see also Phoolbas Koonwur vs. Jogeshur 3 Ind. App., 7, p. 25. If an objection is taken in time, and the Court finds that the suit has been carried on without adding necessary parties, it must be dismissed-Ramsebuk vs. Ramlall, I. L. R., 6 Cal., 815; Kalidos vs. Nathu, I. L. R., 7 Bom., 217; and see Kendall vs. Hamilton, 4 App. Cas., 504, pp. 515, 527-553; Hammond vs. Schofield, 1 Q. B. (1891), 453, p. 457.

Plaintiff -A Hindu widow sued for partition, pending the suit adopted a son, but still carried on the litigation in her own name. It was held that it should be assumed as a matter of law that she litigated as his guardian, and the suit should not be dismissed because the son was not a party-Dhurm Das vs. Thama Soondri, 3 Moore, 220; Hari Sahan vs. Bhutanewari, 15 Ind. App., 195; and where in a suit by the executors of a Hindu's will (before the Hindu Wills Act) it was urged that the heirs should be co-plaintiffs, the objection was disallowed both because it was not taken in the written statement and the executors took in their representative capacity-Rajnarain Bose vs. Universal Life Assurance, I. L. R., 7 Cal., 594, and where one member of a joint Hindu family sued for family property, and it was contended in the Court of first appeal that he could not sue alone, the contention was considered too late-Paramsira vs. Krishna, I. L. R., 14 Mad., 498. See also Uma Sundari vs. Punji, I. L. R., 7 Cal., 242; 9C. L. R., 13.

Plaintiffs were the widow and alleged adopted son of defendant's uncle and they sued on title. The first Appellate Court considering that the interests of the plaintiff's antagonistic the dismissed the suit for mis-joinder: Held, the objection had been taken too late-Fakirapa vs. Rudrapa, I. L. R., 16 Bom., 119.

In a suit to enforce a right of pre-emption the vendor was not made a party; held this objection could not be raised in special appeal-Hiralal vs. Ram Jas, I. L. R., 6 Alla., 57. So when maintenance was decreed to a mother and her two children jointly, an objection in special appeal that there were three causes of action and separate sums should have been adjudged, was rejected-Toolshee vs. Gopal Ray, I. L. R., 6 Alla., 633.

First Hearing.-This section would not prevent a defendant from objecting to the want of a proper party after first hearing if the objection did not exist at that timeModhe vs. Dongre, I. L. R., 5 Bom., 609.

Parties.-An apparent objection to parties may sometimes mean an attempt to sue on a different cause of action. See Scarf vs. Jardine, 7 App. Cas., 345; The London Bank vs. Bhanji, I. L. R., 2 Bom., 116.

Practice. If a question concerning parties is raised at or before first hearing, it probably should be tried quickly-See Richards vs. Batcher, 62 L. T., 86; and if the Judge finds that the objection is valid, he should act under section 32, ante, and not dismiss the suit-see remarks of Bowen J.; in Van Gelder vs. Sowerby, 44. C. D., 374.

Each of several plaintiffs or defendants may authorise any other to appear, &c., for him.

35. When there are more plaintiffs than one, any one or more of them may be authorised by any other of them to appear, plead or act for such other in any proceeding under this Code and in like manner, when there are more defendants than one, any one or more of them may be authorised by any other of them to appear, plead or act for such other in any such proceeding.

The authority shall be in writing signed by the party giving it, and shall be filed in Court.

Authority to be in writing signed and filed.

Act VIII, 1859, section 115. This section applies to H. C. and P. S. C. C.

A decree-holder for himself and as agent for his nephews, applied for execution of a decree passed in favour of the applicant and the father of the nephews. The application was rejected on the grounds-(1), that although applicant produced a mukhtarnama authorising him to execute the decree, it was special and on a stamp of 8 annas, and not a general power under section 17, clause 1, Act VIII, 1859; and (2) that the mukhtarnama was not produced with the application. It was held that under this section no general powers-of-attorney were necessary; and as the mukhtarnama was filed before the Judge had passed his order, the application should have been granted-Ambaram vs. Himatsingh, 2 Bom., 103.

By section 40, Act XX, 1865, any suitor may appear, plead and act in any suit, appeal or other proceeding on behalf of any co-suitor; but he cannot recover any fee or reward.

Recognised Agents and Pleaders.

36. Any Appearances, &c., may

be in person, by recog nised agent or by plead

er.

appearance, application or act in or to any Court, required or authorised by law to be made or done by a party to a suit or appeal in such Court may, except when otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader duly appointed to act on his

behalf :

Provided that any such appearance shall be made by the party in person if the Court so direct.

See Act VIII, 1859, section 16. This section applies to H. C. and P. S. C. C.
Appearance.-See Ram Chundra vs. Madhav, I. L. R., 16 Bom., 23.

Recognized Agent.-Under this section a recognized agent can file an application or enter an appearance on behalf of his principal; he cannot institute or defend a suit nor appear in his own name-Mokha Hurruckraj vs. Bissessur, 13 W. R., 344; Carter vs. Misree, 2 Alla., 179; nor can he address the High Court as a suitor himself may do-Prannath Chowdry vs. Ganendro Mohun, 3 W. R., 108.

Objection to not Allowed.-A suit should not be dismissed by the first Appellate Court, on the ground that the plaint has not been filed by a recognised agent; such an error does not affect the merits of the case-Munoo Dossee vs. Ishan Chunder, 15 W. R., 245. See "OBJECTION TO AGENT ACTING," section 37, post.