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Ganga Prasad Sarraf Vs. Smt. Sukra and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Appln. No. of 1968 in Second Appeal No. 3043 of 1967
Judge
Reported inAIR1977All210
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantGanga Prasad Sarraf
RespondentSmt. Sukra and anr.
Appellant AdvocateV.D. Ojha and ;Girdhar Malviya, Advs.
Respondent AdvocateK.N. Tripathi, Adv.
DispositionApplication allowed
Excerpt:
civil - amendment of petition - order 6 rule 17 of code of civil procedure, 1908 - a point inadvertently not raised in original proceedings can be raised by amendment in appeal petition. - - but a claim should not be allowed to be lost due to this inadvertence and when the courts below have clearly found in favour of the plaintiff on the question of the factum of the partnership and also on the point that the deceased satya narain was the accounting party i think the circumstances of the case warrant that i should allow the amendment therefore, i overrule the objection raised on behalf of the defendant respondents and allow the amendment application......in this manner the plaintiff filed a suit claiming that he entered into a partnership with one satya narain and on 30th january, 1961, the partnership was dissolved and accounting took place wherein a sum of rupees 3638.31 was found to be due to the plaintiff from the said satya narain. the said amount was, however, not paid by satya narain to the plaintiff and, therefore, he was compelled to file the suit against the two defendants, the defendant no. 1 being the widow and the defendant no. 2 being the son of the said satya narain. satya narain died some time in february/march 1963 before the institution of the suit which was instituted on 30th of october, 1963. the defendants were obviously impleaded as the heirs and legal representatives of the deceased satya narain. the defendants.....
Judgment:
ORDER

M.P. Mehrotra, J.

1. This amendment application has been moved on behalf of the plaintiff appellant under Order VI. Rule 17 C.P.C. seeking to amend the plaint. A counter-affidavit has been filed on behalf of the defendants respondents and in reply a rejoinder affidavit has been filed on behalf of the plaintiff appellant. The necessity to move the amendment application arose in this manner The plaintiff filed a suit claiming that he entered into a partnership with one Satya Narain and on 30th January, 1961, the partnership was dissolved and accounting took place wherein a sum of Rupees 3638.31 was found to be due to the plaintiff from the said Satya Narain. The said amount was, however, not paid by Satya Narain to the plaintiff and, therefore, he was compelled to file the suit against the two defendants, the defendant No. 1 being the widow and the defendant No. 2 being the son of the said Satya Narain. Satya Narain died some time in February/March 1963 before the institution of the suit which was instituted on 30th of October, 1963. The defendants were obviously impleaded as the heirs and legal representatives of the deceased Satya Narain. The defendants contested the suit and denied the factum of partnership. They also denied that any accounting or dissolution took place on 30th January 1961. Various other pleas such as limitation, Section 69 of the Partnership Act were taken. The trial court decreed the suit in favour of the plaintiff and then an appeal was taken out to the lower appellate court which allowed the same and dismissed the suit. The lower appellate court, however, affirmed the findings of the trial court on the question of the factum of partnership and on certain other issues such as the shares of the plaintiff and the deceased Satya Narain to the extent of half and half and that Satya Narain was the accounting party. The lower appellate court dismissed the suit on its finding that no dissolution and accounting had taken place on 30th January 1961. The plaintiff has now come up in the instant appeal and an application for amendment has been moved on his behalf whereby,a new para to be numbered as 7-A is sought to be added to the plaint. Similarly a fresh relief to be numbered as A-1 is sought to be added to the reliefs claimed. In a nutshell, the aim of these amendments is to set up an alternative case to the effect that in case in the opinion of the court no dissolution of the partnership is established and again if in its opinion no final accounting is held to have taken place, then the partnership be dissolved and the defendants be directed to render accounts and to pay the amounts to the plaintiff which, may be found due to him on such accounting. S'hri K. N. Tripathi, learned counsel for the defendant-respondents, has opposed this application on the ground that a valuable right has accrued to, his clients on the basis of limitation. He states that the plaintiff knew when he instituted the suit that Satya Narain was already dead and the partnership stood dissolved on the death of Satya Narain. The limitation for claiming account is three years from the date of the dissolution of the partnership. Now Article 5 of the new Indian Limitation Act is the relevant Article and the corresponding Article in the old Limitation Act was Article 106. In this view of the matter, he contends that the application for amendment should not be .allowed. On the other hand, Shri R. N. Bhalla, learned counsel for the appellant, contends that the court's power to allow amendment is wide and even if the court has to allow an amendment in respect of a time-barred claim, then the court has power to do so, and in the circumstances of the case, this power should be exercised in favour of amendment. The law relating to amendment has been exhaustively laid down in A K. Gupta & Sons v. Damodar Valley Corpn. (AIR 1967 SC 96) and there can be no doubt that the court has a wide discretion in the matter. Ordinarily, the court will not allow an amendment which takes away a right which has accrued in favour of a party on the basis of limitation but as the Supreme Court itself laid down there may be circumstances in which an amendment may be allowed even though it may be in relation to a time-barred claim. Now in the instant case as the facts have been found by both the courts, the position is that there was a partnership between the plaintiff and Satya Narain. The share of each partner was half and half and Satya Narain was the accounting party, Ordinarily, in suchsuits the plaintiff claims in the alternative, for dissolution and accounting in addition to his claim that dissolution and accounting has already taken place before the suit. It seems that due to inadvertence this rule of caution was not followed in the instant case and the alternative plea whch in the ordinary practice is always put forth in such suits was not put forward in the plaint. But a claim should not be allowed to be lost due to this inadvertence and when the courts below have clearly found in favour of the plaintiff on the question of the factum of the partnership and also on the point that the deceased Satya Narain was the accounting party I think the circumstances of the case warrant that I should allow the amendment Therefore, I overrule the objection raised on behalf of the defendant respondents and allow the amendment application.

2. This course must now lead to a remand of the case to the trial court The defendant respondents will be entitled to file an additional written statement to the newly added portion of the plaint and the trial court will frame additional issues on the basis of the amended pleadings and will then try the suit after allowing the parties to lead evidence if they so desire on the additional issues framed. I should make it clear that the parties will not be entitled to reopen or question the findings which have already been recorded by the two courts below and the remand is being made only for the purpose of enabling the parties to get an adjudication in respect of the alternative case which is now being allowed to be set up by the plaintiff by the amendment of the plaint. In the circumstances, the parties shall bear their own costs.


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