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Orissa Electrical Manufacture Ltd. Vs. Ashis Bose and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 184 of 1970
Judge
Reported inAIR1973Ori80
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantOrissa Electrical Manufacture Ltd.
RespondentAshis Bose and anr.
Appellant AdvocateR.N. Sinha, Adv.
Respondent AdvocateS. Patnaik, Adv.
DispositionRevision allowed
Cases ReferredMt. Jagpati Kuer v. Sukhdeo Prasad. Jai Jai Earn Manohar Lal
Excerpt:
.....as a defendant was liable to be dismissed, and that consequently if the amendment sought for is allowed, the defendants would be seriously prejudiced in as much as a right which has accrued to them by lapse of time would thereby be defeated. where the plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused, because, to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. it is, therefore, no correct to say that the suit as originally framed was liable to be dismissed due to non-joinder of the firm as a defendant, and that consequently the defendant has secured a right..........behalf of the family in the business name. it was held that the description of the plaintiff by a firm name in a case where the civil procedure code did not permit a suit to be brought in a firm name should properly be considered as a case of description of the individual partners of the business and as such a misdescription, which in law can be corrected. in that view of the matter, the amendment prayed for was allowed.4. it is true that the amendment, in this case, has been applied for at a verylate stage of the proceeding, although objection was taken in the written statement itself that the firm was a necessary party. this would, however, not entail dismissal of the amendment application, although for the negligence of the plaintiff he may be saddled with costs.5. i would.....
Judgment:

Patra, J.

1. This application in revision is directed against an order of the Munsif, First Court, Cuttack rejecting an application for amendment of the plaint. The suit is one for realisation of the price of goods said to havo been supplied to the firm known as 'M/s. Electrical Sales & Services', of which the defendants are partners. The suit was filed on 31-3-1967 and the defendants filed written statement on 31-7-1967 wherein it was contended inter alia that the suit is liable to be dismissed for non-joinder of necessary party, namely, the firm 'M/s. Electrical Sales & Service.' Despite this objection taken in the written statement, no application for amendment of the plaint was made by the plaintiff, and in due course the trial of the suit took place and evidence was closed on 12-3-1970 and arguments were heard on 2-4-1970. Shortly after the close of the argument, an application was filed by the plaintiff to add the above-named firm as a defendant in the suit. There is no dispute that if the suit had been filed on the date the amendment was sought for, it would have been barred by limitation. It was confided on behalf of the defendants in the Court below that the suit without the firm being impleaded as a defendant was liable to be dismissed, and that consequently if the amendment sought for is allowed, the defendants would be seriously prejudiced in as much as a right which has accrued to them by lapse of time would thereby be defeated. The learned Munsif accepted this contention and dismissed the application lor amendment. Hence this revision.

2. An amendment ought to be allowed which would satisfy the two condi-tions, namely, (a) not working injustice to the other side, and (b) of being necessary for the purpose of determining the real question in controversy between the parties. An amendment should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. Where the plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused, because, to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The test, therefore, is whether the amendment can be allowed without injustice to the other side.

3. Before the Civil Procedure Code of 1908 a partnership firm as a legal entity was not recognised in muffosil Courts of India. The Civil Procedure Code, 1908 by Order 30, no doubt allows the plaintiff to sue the members of a firm not, in their individual capacity but as a firm. Thereby it merely provides a new procedure but it does not affect the law on the subject nor does it take away any existing right of suit. Since the partners in a firm in this country are jointly and severally liable for the debts of the firm, they can be sued individually even without naming the firm as one of the defendants. It is, therefore, no correct to say that the suit as originally framed was liable to be dismissed due to non-joinder of the firm as a defendant, and that consequently the defendant has secured a right which would be defeated if the proposed amendment is allowed. See AIR 1942 Pat 204, Mt. Jagpati Kuer v. Sukhdeo Prasad. Jai Jai Earn Manohar Lal v. National Building Material Supply, Gurgaon, AIR 1969 SC 1267, is a still stronger case. In that case, the plaintiff, M, who was the manager of a joint family, and was carrying on its business under a business name, brought a suit in that business name, and, when objection was taken by the defendant that the firm being an unregistered firm was incompetent to sue, applied for the amendment of the plaint stating that he himself had intended to file and had in fact filed the action on behalf of the family in the business name. It was held that the description of the plaintiff by a firm name in a case where the Civil Procedure Code did not permit a suit to be brought in a firm name should properly be considered as a case of description of the individual partners of the business and as such a misdescription, which in law can be corrected. In that view of the matter, the amendment prayed for was allowed.

4. It is true that the amendment, in this case, has been applied for at a verylate stage of the proceeding, although objection was taken in the written statement itself that the firm was a necessary party. This would, however, not entail dismissal of the amendment application, although for the negligence of the plaintiff he may be saddled with costs.

5. I would accordingly allow this application, set aside the order of the learned Munsif and direct that the amendment sought for be allowed on condition that the plaintiff pays Rs. 50/- as costs to the defendants within a week after receipt of the records in the Court below. The records be sect back to the Court below immediately.


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