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Har Prasad and ors. Vs. Lala Sita Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberF.A.F.O. No. 236 of 1953
Judge
Reported inAIR1958All36
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantHar Prasad and ors.
RespondentLala Sita Ram and ors.
Appellant AdvocateS.B.L. Gaur, Adv.
Respondent AdvocateA.P. Gupta, Adv.
DispositionAppeal dismissed
Excerpt:
civil - multiplicity of suit - order 6 rule 17 of code of civil procedure, 1908 - amendment of the plaint should be allowed to avoids multiplicity of litigation - without changing exact nature of suit - amendment praying dissolution of partnership may be allowed. - 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 cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal..........appeal. the appellate court allowed the appeal, set aside the order of the munsif dismissing the suit, allowed the application for amendment and sent the case back for re-trial against that order the present appeal has been filed. while remanding the case the appellate court had held that since 12-5-1951 was fixed only for the disposal of the application, the court had no jurisdiction to dismiss the suit without hearing the argument and it further held that it was proper to allow amendment of the plaint, and since after allowing amendment of the plaint the suit could not be disposed of, he remanded the case.5. learned counsel for the appellant has argued that the appellate court was wrong in considering that 12th may was fixed only for disposal of that application. he relies on the.....
Judgment:

V.D. Bhargava, J.

1. This is a first appeal from an order, remanding the case to the trial Court.

2. The plaintiffs had filed a suit for injunction restraining the defendants from preventing the plaintiffs from using and taking sugarcane juice from the tenants. In the alternative it was prayed that account be taken, which was for 1949-60, from the defendants and a decree be passed for the amount in favour of the plaintiffs. The plaintiffs' case was that there was a partnership between the plaintiffs and the defendants for the purpose of purchasing sugarcane Juice for making gur from it. The case of the plaintiffs further was that the defendants alone had been collecting the juice and have not paid the profits. The defence, inter alia, was that since the partnership was not registered, the suit was barred by Section 69, Partnership Act.

3. During the pendency of the suit several dates had been fixed. The suit was filed on 28-1-50 and 23-3-50 was fixed for filing written statement. The written statement was filed on 21-4-50. Issues were framed on 17-7-50 and thereafter there were several hearings but the suit was not taken up and ultimately the suit was transferred to another Court. The first date on which actually some hearing took place was 10-5-51. It appears that on that day the defence presspd the issue of want of registration of partnership and consequent incompetency of the suit. A prayer was, therefore, made by the plaintiffs that they be granted time to file an application for amendment of the plaint. Time was granted.

On the next date of hearing, i.e., 12-5-1951, the application was filed and in the application for amendment it was prayed that the relief for dissolution of the partnership may also be granted. It may be noted that 12-5-1951 was specifically fixed by the learned Munsif for consideration of that application alone. On that day the learned Munsif dismissed the application for amendment and also dismissed the suit on the ground that since the partnership was not registered, the suit was not maintainable under Section 69, Partnership Act.

4. Aggrieved with that decision the plaintiffs went up in appeal. The appellate Court allowed the appeal, set aside the order of the Munsif dismissing the suit, allowed the application for amendment and sent the case back for re-trial Against that order the present appeal has been filed. While remanding the case the appellate Court had held that since 12-5-1951 was fixed only for the disposal of the application, the Court had no jurisdiction to dismiss the suit without hearing the argument and it further held that it was proper to allow amendment of the plaint, and since after allowing amendment of the plaint the suit could not be disposed of, he remanded the case.

5. Learned counsel for the appellant has argued that the appellate Court was wrong in considering that 12th May was fixed only for disposal of that application. He relies on the order-sheet dated 10-5-1951 because in it, it is mentioned that some arguments were heard and he says that if some arguments had already been heard then it was open to the Court on the next day to dismiss the suit. On the other hand, learned counsel for the respondent relies on the order-sheet of the dates before, and urges that the date fixed was not for final disposal. No evidence was taken on 10-5-51 nor actually arguments were heard, but the case was adjourned simply for the consideration of the application for amendment.

Whatever the position may be, I think it is immaterial. The main question, to my mind, is whether the application for amendment should have been allowed or not. If the application for amendment, in the opinion of the appellate Court, should have been allowed then there was no alternative for the appellate Court but to remand the case. While on the other hand if the application for amendment was not proper then in that case there was no necessity for ordering a remand at all. I would, therefore, confine myself to the amendment application.

6. Now coming to the amendment application, learned counsel for the appellant has argued that it was giving another opportunity to the plaintiffs to fill the lacuna in their case, and he relies on a single Judge decision of this Court in Hira Lal v. Ratan Lal : AIR1944All293 . Therein it was held :

''There is no law which can justify an appellate Court in remanding the case to the trial Court in order that a party, who in the opinion of the appellate Court--right or wrong has failed to discharge the burden that lay on him, may be enabled to have another opportunity of' producing evidence.'

To my mind this case hag no application to the facts of the present case. That case was a case where there was paucity of evidence and, therefore, the Court could not remand the case. This is a well settled proposition, as has been held in Parsotim Thakur v. Lal Mohar Thakur and no objection can be taken to that proposition of law. Here, in the present case the amendment application was given first to the trial Court before the suit or the evidence started, and the question was whether the Court was justified in refusing that application for amendment. It is the duty of the appellate Court to consider the reasons of the refusal and if it thinks that the application should have been allowed then it would allow the application and has to remand the case. Therefore this is not a case where the plaintiff is being given any fresh opportunity to fill in any lacuna, which he failed to do before.

7. Coming to toe merits of the case: Learned counsel for the appellants urges that the lower appellate Court should not have granted the application, because it would change the nature of the case. Reliance was placed on A. T. Ponappa Chettiar v. Bodappa Chettiar : AIR1945Mad146 . That was a very similar case in which also a suit was brought for certain sums of money and an application was made for amendment of the plaint. That application was rejected by the trial Court and the suit was dismissed. The appellate Court was of opinion that the suit was not barred by Section 69.

The matter came up in the High Court and the High Court was of opinion that Section 69, Partnership Act, applied to the facts of the case and the suit was rightly dismissed. The question whether the amendment application was properly rejected or not, did not receive the consideration either of the first appellate Court or of the High Court. The plaintiff in that suit does not appear to have raised that question any further after the rejection of the application and, therefore, merely because of the rejection of the amendment application in that case it cannot be said that ,the High Court approved that an application of such a nature could not be granted.

8. It is always open to a Court to take into account the facts which come into existence after the filing of a suit and, if necessary, to permit amendment of the plaint in the light of the changed circumstances. In the present case the amendment of the Plaint became necessary because the partnership, by the time that the suit came up for hearing, had come to an end and, therefore, there was no necessity of any injunction being granted and instead of that, since the partnership had come to an end, a prayer for dissolution was made. At that time it was open to the plaintiff to file a separate suit for dissolution of the partnership.

That suit was not barred by time and therefore, instead of allowing separate suit the Court has allowed the same matter to be litigated in this very suit. If an amendment of the plaint avoids multiplicity of litigation without changing the essential character of the suit itself, the amendment should be allowed. Here the question of partnership was there and the accounts were there and since the partnership had come to an end the Court was right in allowing the amendment application by adding a prayer for dissolution of the partnership.

9. In the circumstances I think the decision of the Court below was correct and I see no force in this appeal. The appeal is accordingly dismissed with costs.


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