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irfan Ahmad Vs. Nabil Ahmad Khan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 20 of 1968
Judge
Reported inAIR1972All15
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
Appellantirfan Ahmad
RespondentNabil Ahmad Khan
DispositionRevision dismissed
Excerpt:
.....of civil procedure, 1908 and section 69 of partnership act - dissolution of partnership firm - suit to recover profits out of rent of land and hire charges of furniture and fittings of one partner - suit dismissed being barred under section 69 of partnership act - suit to recover amount as mesne profits - opposed on ground of change in nature of suit - amendment allowed as period mentioned relates to the date of original suit. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the..........of rent and value of furniture and fittings used by the defendant.2. the main defence was that the suit was barred by section 69 of the partnership act. this issue was decided as a preliminary issue and the finding was that the suit was barred under section 69 of the partnership act. the plaintiff thereupon sought to recover the amount as mesne profits and prayed that an issue be struck on this plea, but the plaintiff's prayer was rejected. thereafter the plaintiff filed the present application for amendment of the plaint, giving rise to this revision.3. the amendment application (kha-74) has been placed before me in extenso. the partnership is alleged to have come to an end on 16th july, 1963 and inasmuch as the defendant did not pay monthly profits to the plaintiff for the period 1st.....
Judgment:
ORDER

Gyanendra Kumar, J.

1. This is a revision by the defendant against the order of the Civil Judge, Malihabad at Lucknow, allowing amendment of the plaint. The parties ' were partners in a business which stood dissolved. There is, however, difference of opinion between the parties as to how it got terminated. The plaintiff filed a suit for recovery of specific sums as profits on account of rent and value of furniture and fittings used by the defendant.

2. The main defence was that the suit was barred by Section 69 of the Partnership Act. This issue was decided as a preliminary issue and the finding was that the suit was barred under Section 69 of the Partnership Act. The plaintiff thereupon sought to recover the amount as mesne profits and prayed that an issue be struck on this plea, but the plaintiff's prayer was rejected. Thereafter the plaintiff filed the present application for amendment of the plaint, giving rise to this revision.

3. The amendment application (Kha-74) has been placed before me in extenso. The partnership is alleged to have come to an end on 16th July, 1963 and inasmuch as the defendant did not pay monthly profits to the plaintiff for the period 1st June, 1963 to 15th July, 1963, but continued to carry on business on the land in suit and also continued to use the furniture and fittings of the plaintiff, he claimed their rent and hire equivalent to the profits which were payable by the defendant to the plaintiff.

4. The first amendment sought was that in any case the plaintiff was entitled to get the claimed amount as damages for use and occupation and in the alternative as mesne profits. The second amendment sought was only of a formal nature for a minor verbal change. By third amendment, the plaintiff sought deletion of two lines and desired them to be substituted by the words: 'Profits at the rate of Rupees 225/- from 1-6-1963 to 15-7-1963 and rent at the same rate from 16-7-1963 to 30-5-1964 and damages for use and occupation or mesne profits at the rate of Rs. 250/- from 1-6-1964 to 10-11-1964'.

5. The amendments sought were seriously objected to by the defendant. However, the trial Judge allowed the amendments hence this revision by the defendant mainly on two grounds : firstly, that the amendments changed the nature of the suit and secondly, that with respect to some of the items the claim had become barred by limitation.

6. The original claim was for the period 1st June, 1963 to 10th November, 1964. Even after the amendments, the claim remains for the same period, but if the date of the amendment were to be treated as the date of the institution of the suit, the whole claim would be barred by limitation. However, as a general rule, the amendments relate back to the original date of the institution of the suit.

7. The plaint, written statement, amendment application and the order passed by the Court below thereon have all been placed before me. Reading them as a whole, I find that the amendments do not really change the nature of the suit, particularly when the amended claims have been put in the alternative. It is noteworthy that of late the Supreme Court has been taking a liberal view of the scope of amendment of pleadings as contemplated by Order VI, Rule 17, Civil P. C. In Jai Jai Ram Manohar Lal v. National Building Material Supply. Gurgaon (AIR 1969 SC 1267) their Lordships observed in paragraph 5 as under:--

'............Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting male fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment may be allowed if it canbe made without injustice to the other side

In paragraphs 7 and 8 their Lordships of the Supreme Court again emphasized that-

'The power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations.

Since the name in which the action was instituted was merely a mis-description of the original plaintiff, no question of limitation arises; the plaint must be deemed on amendment to have been instituted in the name of the real plaintiff on the date on which it was originally instituted.'

Such being the position of law, the trial Court had full jurisdiction to grant the plaintiff's amendment application. In the totality of circumstances it cannot be said that it acted illegally in the exercise of that jurisdiction by granting the amendment of the plaint. At any rate, I do not consider it a fit case for interference in revision, which is accordingly dismissed.


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