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Roop NaraIn Vs. Premchand T. Nathani and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 501 of 1971
Judge
Reported inAIR1974Raj29; 1973()WLN537
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 6, Rule 17
AppellantRoop Narain
RespondentPremchand T. Nathani and ors.
Appellant Advocate R.L. Jangid, Adv.
Respondent Advocate Govind Mal Mehta and; A.L. Chopra, Advs.
DispositionRevision allowed
Cases Referred and Harakchand v. The State of Raiasthan.
Excerpt:
civil procedure code - order 6 rule 17--defendants denying partnership between plaintiffs--plaintiffs praying amendment to plead in alternative defendants as agent & principal--held, amendment be allowed.;when the defendants denied the factum of partnership between them altogether the plaintiff wanted to amend the plaint so as to plead in the alternative that in case the alleged partnership was not established the defendants nos. 1 and 3 must be held bound by the acts of defendant no. 3 as he was acting as an agent on behalf of all the defendants and was making purchases, signing the bills and making acknowledgements on their behalf. in my opinion the cause of action of the suit is not at all changed by the proposed amendment, nor has the trial court held so.;(b) c.p.c. - section..........by the plaintiff (in civil original suit no. 136 of 1969 pending in the court of additional civil judge, jodhpur) from the order dated 2-3-1971 by which the learned judge disallowed the plaintiff's prayer to amend the plaint so as to plead in the alternative that the defendant no. 3 was acting as an agent of defendants nos. 1 and 2. m/s prem chand t. nathani and premchand respectively.2. the suit was originally filed against all the three defendants on the ground that the defendants nos. 2, and 3 were partners and were dealing in sanitary-ware and pipe fittings in the name and style m/s premchand t. nathani. the defendants denied partnership between the defendants nos. 2 and 3 and thereupon the plaintiff filed an application for amendment of the plaint.3. the learned additional.....
Judgment:
ORDER

C.M. Lodha, J.

1. This is a revision application by the plaintiff (in Civil Original Suit No. 136 of 1969 pending in the court of Additional Civil Judge, Jodhpur) from the order dated 2-3-1971 by which the learned Judge disallowed the plaintiff's prayer to amend the plaint so as to plead in the alternative that the defendant No. 3 was acting as an agent of defendants Nos. 1 and 2. M/s Prem Chand T. Nathani and Premchand respectively.

2. The suit was originally filed against all the three defendants on the ground that the defendants Nos. 2, and 3 were partners and were dealing in sanitary-ware and pipe fittings in the name and style M/s Premchand T. Nathani. The defendants denied partnership between the defendants Nos. 2 and 3 and thereupon the plaintiff filed an application for amendment of the plaint.

3. The learned Additional Civil Judge has held that, the entire case would be changed by allowing the Proposed amendment.

4. A preliminary objection has been raised on behalf of the non-petitioners that no revision is maintainable from an order passed under Order VI, Rule 17 Civil P. C. on an application for amendment of pleadings. Reliance has been placed on the observations of Bose J. in the order of reference reproduced in Narayan Sonaji v. Sheshrao Vithoba AIR 1948 Nag 258 (FB) and it has been urged that these observations have been approved by their Lordships of the Supreme Court in Keshardeo v. Radha Kishan AIR 1953 SC 23 and Harakchand v. The State of Raiasthan. 1970 Rai LW 320.

5. Bose J. has observed:

'.........If that Court entertains theapplication and considers It in accordance with the prescribed forms of law that is to say, after hearing the parties and so forth, and reaches a conclusion judicially, that is to say after formally setting out reasons in writing. I find it impossible to say either that, that Court has not exerciseda jurisdiction vested in it by law or that it has refused to exercise such a jurisdiction ............ The Judge must reach hisconclusion judicially and not arbitrarily, and so forth. Therefore, if a Judge refused to hear the parties or one of them, or if he flips a coin instead of applying his mind to the case and giving a judicial decision, or if he acts arbitrarily such as deciding on the colour of a man's eyes or that of his hair, or if he gives no reasons in cases where the law requires reasons to be recorded, then he is not complying with the procedure which the law prescribes for a fair and proper trial, In that event interference is called for under Clause (c). But if he does all that and acts fairly and judiciallv the matter cannot, in my judgment fall within Clause (c)'

6. Now let us turn to the wordings of Order VI, Rule 17 Civil P. C:--

'The court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.'

7. It may be Pointed put that in the present case the application for amendment has been made before the parties have led evidence. In the original plaint it has been no doubt alleged that defendants Nos. 2 and 3 are partners in the business being carried in the name of M/s Prem Chand T. Nathani. But in para No. 3 of the plaint it has been further specified that both the said defendants purchased articles of sanitaryware and pipe fittings from the plaintiff from time to time in the name: M/s Premchand T. Nathani and that the defendant No. 3 acknowledged the correctness of the accounts on behalf of all the defendants every year and signed the same. When the defendants denied the factum of partnership between them altogether the plaintiff wanted to amend the plaint so as to plead in the alternative that in case the alleged partnership was not established the defendants Nos. 1 and 2 must be held bound by the acts of defendant No. 3 as he was acting as an agent on behalf of all the defendants and was making purchases, signing the bills and making acknowledgements on their behalf. In my opinion the cause of action of the suit is not at all changed by the proposed amendment, nor has the trial court held so. In fact it has been pleaded in the original plaint also in para No. 3 as stated above that defendant No. 3 used to sign the accounts on behalf of all the defendants. Thus the fact thatdefendant No, 3 was acting on behalf of the defendants is there in the original plaint also and all that is sought to be introduced by the amendment is to make the pleadings more specific and to State the inference which may he drawn from the acts of defendant No, 3. It is therefore, not a case where the defendants have been taken by surprise. In my opinion the observation of the trial court that by the proposed amendment the entire case is changed is wholly arbitrary and in disregard of the original pleading. The trial court has not addressed itself to the requirements of Order 6, Rule 17 Civil P. C. which enjoins upon the court to allow all such amendments as may be necessary for the purpose of determining the real questions in controversy between the parties. Here it may not be out of place to point out that even under the Partnership Act a partner is deemed to be the agent of the firm for the purpose of business of the firm. The nature of the suit is therefore, not altered by the proposed amendment nor does it cause any prejudice or surprise to the opposite party. On the other hand it is necessary for the purpose of determining the real questions of controversy between the parties. In disallowing the plaintiffs prayer the court below has ignored the well established principles to be kept in mind in the matter of allowing amendments and its finding cannot be said to be a judicial one. In this view of the matter, a case for interference has been made out under Section 115(c) of the Code of Civil Procedure.

8. Accordingly, I allow this revision application and modify the order of the trial court dated 2-3-1.971 and direct that besides the other amendments allowed by the trial court the plaintiff be also allowed to amend the Para No. 2 of the plaint as prayed in his application dated 19-1-1971. Since the Court below has already awarded Rs. 50/- as costs to the defendants for allowing certain other amendments prayed for in the same application, I do not consider it proper to allow any further costs to the defendants for allowing this amendment. The costs of this revision application will be easy.

9. Let the record of the case besent forthwith to the trial court for proceeding according to law.


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