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Bishan Sarup and Bros. and anr. Vs. Tara Wanti and anr. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 419 of 1973
Judge
Reported inAIR1974P& H179
ActsCode of Civil Procedure (CPC), 1908 - Sections 151 - Order 6, Rule 17
AppellantBishan Sarup and Bros. and anr.
RespondentTara Wanti and anr.
Excerpt:
.....no.11/1973] -- section 4(2)(b): [m.m. kumar, hemant gupta, ajay & kumar mittal, jj] determination of fair rent held, the fair rent of building under the section is to be determined on the basis of rent agreed between landlord and tenant preceding the date of application. in the absence of rent agreed between parties the basic rent is required to be determined on the basis of rent prevailing in locality for a similar building or rented land on the date of application. if on the date of filing of the application under section 4 of the act for determination of fair rent, the agreed rent was still in vogue thus, it has to be regarded as the basic rent and the same would be constituted as the basis for determining fair rent. thus, where rs.500/- was paid as rent by tenant to the landlord,..........shrimati tara wanti, who is the respondent before me, had been making deposits of money from time to time since the year 1965-66 with messrs. bishan sarup and others, a firm arraigned as defendant no. 1 and consisting of defendants nos. 2 and 3 as partners, that the defendants were to pay her interest at the rate of 9 per cent. per annum on the monies deposited with them but that they had refused to account for those monies, and that she believed that a sum of rs. 22,000/- would be found due to her on rendition of accounts.the suit was resisted by the defendants whose case was that the plaintiff had never deposited any monies with them although they did maintain an account in her name of monies deposited with them by her deceased husband named atma ram who had taken away the entire.....
Judgment:
ORDER

1. This petition for revision of an order dated the 22nd of March, 1973, passed by Shri I.P. Vasisth, Subordinate Judge, 1st Class, Panipat, permitting the plaintiff to amend the plaint has arisen from a suit for rendition of accounts and recovery of amount found due in consequence. The allegations in the plaint were that the plaintiff, Shrimati Tara Wanti, who is the respondent before me, had been making deposits of money from time to time since the year 1965-66 with Messrs. Bishan Sarup and others, a firm arraigned as defendant No. 1 and consisting of defendants Nos. 2 and 3 as partners, that the defendants were to pay her interest at the rate of 9 per cent. per annum on the monies deposited with them but that they had refused to account for those monies, and that she believed that a sum of Rs. 22,000/- would be found due to her on rendition of accounts.

The suit was resisted by the defendants whose case was that the plaintiff had never deposited any monies with them although they did maintain an account in her name of monies deposited with them by her deceased husband named Atma Ram who had taken away the entire amount standing to her credit in that account on the 17th of May, 1963, during his lifetime.

In her replication the plaintiff denied the correctness of the case set up by the defendants and reiterated the position taken up by her in the plaint. She further alleged that even if her late husband be proved to have deposited the monies in her name, he was not entitled to receive back the same and that her suit was, therefore, liable to be decreed. This replication is dated the 7th of November, 1972. A notice dated the 3rd of November, 1972, purporting to bear the signature of defendant No. 3 and his counsel Shri J.P. Goel was despatched to the address of the plaintiff per registered post on the 21st of November, 1972, and appears to have been delivered to her a day later. It is stated that the amount standing in the account of the plaintiff on the 17th of May, 1969, was Rs. 17,259.74 which her husband received from the defendants on that date on the representation that it belonged to him. A photo-copy of the notice has been placed by the plaintiff on the record of the trial Court.

On the 7th February, 1973, the plaintiff made an application under Section 151 and Rule 17 of Order VI of the Code of Civil Procedure praying for permission to amend the plaint. The main amendment sought the conversion of the suit from one for rendition of accounts and recovery of the sum found due in consequence to one for recover of a sum certain, namely, Rs. 17259.74 with interest from the 17th of May, 1969, till realisation. The amendment was opposed mainly on the ground that it would effect a change in the nature of the suit and would result in irreparable injury to the defendants because the suit for recovery of a sum certain if brought on the date of the application for amendment would be time-barred.

The learned Subordinate Judge noted that if a suit for the recovery of Rs. 17,259.74 was brought on or after the date on which the application for amendment was made it would be time-barred but held that, that was no reason for refusing the amendment which was in no way calculated to change the nature of the suit but merely sought to assert in the plaint the sum certain which was due to her and of which she had no knowledge earlier. That is why he passed the impugned order by which the defendants feel aggrieved.

2. Learned Counsel for the defendants-petitioners has vehemently contended that the learned Subordinate Judge was not justified in allowing the amendment because it introduces inconsistent pleas in the plaint. He has drawn my attention to the contents of paragraphs 7 and 8 of the amended plaint and they may be reproduced here with advantage:

'7. That after about a fortnight the plaintiff asked the defendants to tell the exact amount with them and to pay the same to the plaintiff as the date of marriage of the plaintiff's daughter was drawing nearer but the defendants refused to do so.

'8. That a sum of Rs. 17,259.74 P. was outstanding and payable to the plaintiff by the defendants on 17-5-1969 along with the interest at the rate of 9% per annum. The defendants were several time requested to pay the amount lying with them but they did not pay and refused to pay the same in the last week of September, 1971.'

He has pointed out that although in paragraph 7 the plaintiff has taken the stand that about a fortnight earlier to the filing of the suit the plaintiff had asked the defendants to tell her the exact amount with them (in her account) and to pay the sum to her, which demand they refused to meet, in paragraph 8 she has taken a somersault by specifying the exact sum due to her on the 17th of May, 1969. I find no inconsistency in the averments made in the two paragraphs. In the application for amendment the plaintiff clearly stated that she had learnt from the notice above-mentioned that an amount of Rs. 17,259.74 P. was standing to her credit in the accounts maintained by the defendants and that that was the circumstance which had necessitated the amendment of the plaint. The mention in the amended plaint of the amount due to her on the 17th of May, 1969, must be regarded in view of the contents of that application to be an averment that the plaintiff had come to gain knowledge thereof from the notice served on her by the defendants during the pendency of the suit. Viewed in this light, no part of the plaint can be said to be inconsistent with any other. Far from changing the nature of the suit, the amendment merely furnishes before the conclusion of the trial what it had asked the Court to ascertain by having recourse to rendition of accounts because the plaintiff was ignorant of the same. The cause of action remains precisely what it was before the amendment was allowed and no new or inconsistent case is sought to be introduced by the plaintiff through the amendment. Even though, therefore, a suit brought when the application for amendment was made would be time-barred, the amendment cannot be disallowed on that ground. In fact had the defendants not supplied the quantum of the money standing in the name of the plaintiff in their account books on the 17th of May, 1969, the suit would have continued as one for rendition of accounts and for recovery of the amount found due in consequence and no question of any time-bar would then have arisen.

3. For the reasons stated I find no force in the petition which is dismissed. It suffers from such lack of merit that I am inclined to believe that it was filed as a mere dilatory tactic. In this situation I would burden the petitioners with heavier costs than I would have ordinarily done. I, therefore, assess the counsel's fee at Rupees 200/-. The parties are directed to appear before the trial Court on the 3rd of October, 1973.

4. Petition dismissed.


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