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General Traders Vs. Tambhu Bisoi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 273 of 1981
Judge
Reported inAIR1986Ori125
ActsCode of Civil Procedure (CPC) , 1908 - Sections 69 - Order 1, Rule 10 - Order 6, Rule 17; Partnership Act, 1932 - Sections 69
AppellantGeneral Traders
RespondentTambhu Bisoi and ors.
Appellant AdvocateN. Patra, Adv.
Respondent AdvocateA.K. Mohapatra, Adv.
DispositionPetition allowed
Cases ReferredJai Jai Ram Manohar Lal v. National Building Material Supply
Excerpt:
.....mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - held that the application could not be refused on the ground that there was no averment therein that the misdescription was on account of a bona fide mistake, and on that account the suit must fail. the court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs......is not governed by any such narrow or technical limitations. the description of the plaintiff by a firm name in a case where the civil p.c. did not permit a suit to be brought in the 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. it should not be considered to amount to a description of a non-existent person. air 1961 sc 32-5 and air 1933 bom 304, rel. on; air, 1965 all 586, reversed. 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,.....
Judgment:
ORDER

D.P. Mohapatra, J.

This application under Section 115, Civil P.C. is directed against the order of the Appellate Court refusing the petitioner's prayer for amendment of plaint.

The petitioner filed M. S. No. 1 of 1977 against Brundaban Bisoi for realisation of a sum of Rs. 4841.08 on Khata account for supply of Mahua flowers and jaggery and other commodities. The said Brundaban Bisoi having died during the pendency of this revision petition, his legal representatives have been substituted in his place. The gist of the petitioner's case was that the plaintiff was a registered partnership firm with Harihar Patra as the managing partner. The opposite party opened a mutual and current account with the plaintiff-firm on 30-1-1963 and used to take commodities on credit from the firm as and when necessary and was depositing money according to convenience which was being adjusted towards the price of the commodities taken by him. The opposite party on 3-2-1968 purchased Mahua flower for the last time worth Rs. 432.28 and last deposit made by him with the firm was Rs. 474.00 on 13-3-1968. Thereafter, the said opposite party stopped all dealings with the plaintiff-firm. Even after several demands as the defendant did not pay up the dues, the plaintiff-firm was compelled to file the suit for realisation of its dues.

2. The defendant-opposite party on theother hand pleaded that whenever he hadpurchased Mahua flower from the shop of theplaintiff, it was on payment in cash. He hadneither any credit dealing with the firm, norhad opened any mutual current account withit. The defendant took a further ground thatthe suit was not maintainable as the plaintiff-firm was not a registered partnership firm bythe date of the filing of the suit and that thesuit was barred by limitation.

The trial court by its judgment dated 30-9-1978 dismissed the suit solely on the ground that the plaintiff-firm was not registered under Section 69 of the Partnership Act on 9-12-1970 when the suit was filed and hence the suit was not maintainable as provided under Section 69 of the Act. The findings on, all other issues were in favour of the plaintiff.

3. The petitioner preferred an appeal (M. A. No. 20 of 1978) in the court of the District Judge, Ganjam-Boudh against the decision of the trial court. In course of the appeal the petitioner filed a petition under Order 1 Rule 10 read with Section 151, Civil P.C. seeking to amend the plaint in the following manner : --

'a. Add paragraph 1(a) after para-- 1 :

The plaintiff No. 2 was doing business as sole proprietor under the name and style General Traders. The defendant entered into several transactions with plaintiff No. 2 and on account a sum of Rs. 4131.03 paise as the balance was struck by 13-3-1968 as due by the defendant. b. In para 2 of the plaint in the second line add 'No. 2' after the word plaintiff and omit the word firm and wherever the word firm occurs after the word plaintiff in paras 1 to 3 and 5.

c. In para 8 after the word plaintiff 'plaintiff No. 2' be shown.

d. In the cause title add plaintiff No. 2 and add plaintiff No. 2 as follows : -- No. II. Harihar Patro, s/o Late Maheswar Patra aged about 44 years, Trader, Residing at Gramadevata Street Berhampur Town, P. W. & P. S. Berhampur, Ganjam District.'

The opposite party objected to the amendments sought mainly on the ground that if allowed, it would change the nature of the suit.

The appellate Court on a consideration of the matter, rejected the prayer for amendment as already indicated above by its order dated 10-3-1981. The said order is impugned in this revision petition.

4. A perusal of the impugned order shows that what has weighed with the Court below is that the stand of the plaintiff proposed to be introduced by amendment is that Harihar Patro be permitted to sue the defendant-opposite party in his individual capacity on the plea that the transaction was not really with the firm M/s. General Traders (plaintiff) but it was with another proprietary concern of which the said Harihar Patro was the sole proprietor and hence the prayer is to implead Harihar Patro as plaintiff No. 2 and to make necessary changes in the plaint to indicate that the transaction was with the proprietary concern of which he was sole proprietor and was not with the plaintiff-firm. This, no doubt, is a new case which was sought to be introduced by the plaintiff. Harihar Patro in his evidence had stated about the existence of a proprietary concern before the plaintiff-firm (Partnership firm) was constituted, even when there was no such averment in the pleading.

5. The position has to be accepted that the Courts are generally lenient in allowing the amendments. This is not to say that any and every amendment sought for by a party should be allowed merely on asking for it. The wide discretion vested in the Courts to allow amendment of the pleadings at any stage of the suit, which includes appeal, has to be judicially exercised with due application of mind. One of the principal considerations to be kept in view by the Court while judging the question whether to allow the proposed amendment or not is, whether the changes sought to be brought about in the proceeding will so drastically change the nature and character of the suit that the other side will be seriously prejudiced and may not be in a position to offer a fair contest in the case.

6. Judged by the principle indicated above, in the present case, it cannot be said that the proposed amendment is of such a character which would put the defendant to irreparable loss and injury and prejudice which cannot be compensated by cost. As noticed earlier, excepting the issue relating to the maintainability of the suit, all other issues were decided by the trial court in favour of the plaintiff. The trial court gave a categorical, finding that the plaintiff has been able to establish that a sum of Rs. 4131.03 was due from the defendant. The defendant did not challenge any of the findings against him by filing any cross-appeal in the appeal. As noticed earlier, Harihar Patro had stated in his deposition about the existence of a proprietary concern. In the circumstances, the question of prejudice being caused to the defendant if the proposed amendments are allowed, does not arise.

The view taken by me gets assurance from the decision of the Supreme Court in the case of Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon reported in AIR 1969 SC 1267, where the Court observed as follows : --

'Where 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.

Held that the application could not be refused on the ground that there was no averment therein that the misdescription was on account of a bona fide mistake, and on that account the suit must fail. There is no rule, that unless in an application for amendment of the plaint it is expressely averred that the error, omission or misdescription is due to a bona fide mistake, the court has no power to grant leave to amend the plaint 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.

The description of the plaintiff by a firm name in a case where the Civil P.C. did not permit a suit to be brought in the 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. It should not be considered to amount to a description of a non-existent person. AIR 1961 SC 32-5 and AIR 1933 Bom 304, Rel. on; AIR, 1965 All 586, Reversed.

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 mala 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 can be made without injustice to the other side.'

In view of the discussions above, the revision petition succeeds and the same is allowed.

7. The prayer of the petitioners for amendment of the plaint is granted, subject to the condition that the petitioners to pay to the opposite party a sum of Rs. 200/- towards cost. Both the parties are to bear their respective costs of this proceeding.


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