ORDER J.P. Bajpai, J. l. By this revision, the applicant plaintiff seeks interference with the order made by the trial Court refusing his request for amendment of the plaint. 2. The facts giving rise to this revision are that the petitioner instituted a suit for dissolution of partnership and rendition of accounts against the non-petitioners Nos. 1 to 4 on the allegation that there was a partnership in between him and non• petitioner Nos. 1 to 3. The name of the non-petitioner 4 was however, added because he was also actually interfering with the possession of the plaintiff in respect of the business of partnership and had made a forcible entry by breaking open the lock of the shop. 3. The case put up by the defendants in the written statement was that the agreement of partnership relied by the plaintiff had already terminated on 31-12-1974. They further stated that the plaintiff had agreed to receive Rs. 18,000/- towards the good will and had surrendered all his interest in favour of the non-petitioner No. 4 and under these circumstances he was not entitled to claim any relief either for dissolution of partnership or for accounts or for permanent injunction against anyone of the defendants. The defendants Nos. 1 to 3 have also stated that there was no partnership in between them and the plaintiff. 4. When the defendants came with this plea, the plaintiff sought permission of the Court to incorporate such amendment in the plaint which, according to the plaintiff, was purely consequential and had become necessary in the context of the defence raised by the defendants. By the proposed amendment the plaintiff wanted to state that there was no such finally concluded agreement and it was only at the stage of draft agreement and was also not signed by all the parties. It was also pleaded in the alternative that even if it was held that there had been any such agreement, the plaintiff had not been paid Rs. 18,000/- and as such the defendants cannot claim any benefit out of such an agreement. The plaintiff has also stated that due to inadvertence, he could not state the aforesaid circumstances of the talks and the existence of draft agreement for relinquishing his rights and interest in the partnership business on receipt of Rs. 18,000/-.
18,000/- and as such the defendants cannot claim any benefit out of such an agreement. The plaintiff has also stated that due to inadvertence, he could not state the aforesaid circumstances of the talks and the existence of draft agreement for relinquishing his rights and interest in the partnership business on receipt of Rs. 18,000/-. In the aforesaid context, it was stated that there was any such agreement the plaintiff was entitled to the relief of permanent injunction against defendant No. 4 because he had not been paid the aforesaid amount of Rs. 18,000/-. 5. The trial Court happened to reject the request for amendment by saying that by the proposed amendment, the plaintiff wanted to introduce a new cause of action and the same, if allowed, will change the entire case as pleaded initially in the plaint and, therefore, such amendment was not liable to be allowed. 6. There can be no doubt that if the plaintiff seeks to alter the cause of action itself and to introduce entirely a new or another case amounting virtually to substitution of a new one in place of what was originally there, the Court may, in the facts and circumstances of the case, refuse to permit the amendment if in consequence it amounted to depriving the other side of any right which might have accrued in his favour due to lapse of time. But it is also equally true that where the plaintiff had failed to set out even essential fact or wants to put up an alternative case in order to meet the defence, the same will not by itself constitute a new cause of action, The cause of action is constituted by the whole bundle of essential facts by proving which the plaintiff may succeed. It is also well settled that a party can take alternative stand in support of his case for claiming the relief sought for. 7. The provisions of Order 6 rule 17 of the Code of Civil Procedure relate to procedural law which are intended to facilitate and not to obstruct the course of substantive justice. The aforesaid order and the rules are provisions relating to pleadings in civil cases.
7. The provisions of Order 6 rule 17 of the Code of Civil Procedure relate to procedural law which are intended to facilitate and not to obstruct the course of substantive justice. The aforesaid order and the rules are provisions relating to pleadings in civil cases. If one looks at the entire scheme contemplated by the provisions of Order 6, one will find that the provisions incorporated therein are meant to give each side sufficient intimation of the case of the other so that it may be met and the Courts may also be able to determine and find out the real controversy between the parties and also to prevent deviation by surprise from the course of litigation on a particular cause of action. For this purpose provisions have been made under Order 6 rule 5 of the Code of Civil Procedure for furnishing better particulars to the pleadings raised by the parties. Thus, the procedural law, as contained in the Code of Civil Procedure is for promoting the ends of justice and not for defeating the same. There may be cases where a party or its counsel may not be so efficient as to set out initially its case without any short-coming. Such defects can certainly be removed so long as the same do not unjustifiably injure the rights accrued in favour of the other side No doubt the plaintiff should have been careful in stating the facts which he now wants to rely by amending the pleadings as an alternative stand for claiming the relief sought in the plaint. Apparently, there was an omission on the part of the plaintiff but the same will not justify refusal of the opportunity to amend and cure the defect. Pleadings are generally curable. 8. In the present case, nothing could be shown to infer that any prejudice was being caused to the defendant or any right, which has accrued to them by lapse of time, was being taken away. The amendment proposed in the present case was purely consequential. The contents of the proposed amendment, if allowed win be tried and adjudicated after giving full opportunity to the other side. As alleged in the proposed amendment, there is sufficient explanation for the plaintiff's omission in not stating the facts at the initial stage.
The amendment proposed in the present case was purely consequential. The contents of the proposed amendment, if allowed win be tried and adjudicated after giving full opportunity to the other side. As alleged in the proposed amendment, there is sufficient explanation for the plaintiff's omission in not stating the facts at the initial stage. According to the plaintiff, there was no such concluded agreement, since the defendants have come with the said plea, the plaintiff was justified in making the consequential amendment in his pleadings. Shri Jain, learned counsel for the non-applicants, pointed out that when there was no partnership at all, how could the plaintiff claim rendition of accounts or permanent injunction against the defendants. In my opinion, this contention pre-supposes certain facts which are yet to be adjudicated after trial. By the proposed amendment, the plaintiff simply wants to plead that actually speaking there was no operative agreement of surrendering his rights of partnership in favour of defendant No. 4 and. in the alternative, it has been stated that even if such an agreement is held to have taken place, the plaintiff was entitled to protect his possession so long as the conditions of the said agreement were not fulfilled and in that view of the matter he could claim the relief of permanent injunction against defendant No. 4. 9. This revision, therefore, succeeds, and is allowed. The order impugned made by the trial Court refusing permission to incorporate the proposed amendment is set aside. The plaintiff is permitted to amend the pleadings by incorporating the proposed amendments on payment of cost of Rs. 50/-. In the circumstances of the case, there will be no order as to costs of this revision. Parties will bear their own.