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1998 DIGILAW 684 (GUJ)

BHARATKUMAR CHHATRAJI v. PATEL AMBALAL KANJIBHAI

1998-11-05

S.K.KESHOTE

body1998
S. K. KESHOTE, J. ( 1 ) HEARD learned Counsels for the parties. ( 2 ) ORDER dated 22-6-1998 below Ex. 47 in Civil Suit No. 6972 of 1987 passed by the Judge, City Civil Court, Ahmedabad under which the application filed by the plaintiff-petitioner for amendment of his plaint has been rejected is under challenge in this Civil Revision Application by him. The plaintiff-petitioner filed the suit out of which this Revision Application has arisen for dissolution of the partnership firm M/s. Bhailal Ambalal and Co. and for taking accounts of the said firm. Further prayer has been made by the plaintiff-petitioner for permanent injunction to restrain the defendants from carrying on any business in the suit premises and from entering the suit premises. ( 3 ) IT is not in dispute that the defendants-respondents filed H. R. P. Suit No. 3939 of 1986 in the Small Causes Court, Ahmedabad in the name of the partnership firm m/s. Bhailal Ambalal and Co. against the plaintiff-petitioner in which a prayer has been made that a declaration be given that the firm is tenant of the disputed premises. It is not in dispute that the aforesaid suit has come to be decided on 19-7-1997 and the suit has been dismissed. In that suit it is not in dispute between the parties that Small Causes Court held that plaintiff-petitioner is the tenant of the suit premises. After decision in that suit, in the present suit, the plaintiff-petitioner filed the application and prayed therein for amendment of the plaint to the extent that defendants may be directed to hand over the possession of the suit shop to him. ( 4 ) THIS application has been filed on 10-1-1998 and I find therefrom that it becomes necessary for the plaintiff-petitioner to file this application as the defendants- respondents, who were claiming themselves to be the owners of the tenancy rights in suit but that H. R. P. suit has been decided in favour of the plaintiff-petitioner and as such the prayer of the possession of the suit shop is necessary. The learned counsel for the defendants-respondents contended that the decision of the Small causes Court in tenancy suit is not final as against it the defendants-respondents have already filed appeal which is pending. The learned counsel for the defendants-respondents contended that the decision of the Small causes Court in tenancy suit is not final as against it the defendants-respondents have already filed appeal which is pending. Whatever it may be but the fact remains that in case ultimately the tenancy case is decided in favour of the plaintiff-petitioner then in this suit which is regarding the dissolution of the partnership firm and taking accounts of the said firm, this prayer is necessary. It is to be decided in respect of the tenanted property also. The learned trial Court has committed a serious illegality in exercise of its jurisdiction in holding that the prayer for possession of the suit premises will change the whole nature of the suit. The reason given that even if the plaintiff is holder of the tenancy rights of the premises but when he is not the partner of the firm and has nothing to do with the firm the question of recovering possession being the tenant of the suit premises does not arise, is wholly perverse. The suit has been filed by the plaintiff for dissolution of partnership firm and taking accounts thereof. It is not the case where the plaintiff was altogether a stranger to the firm. It appears that he was admitted to the benefits of the partnership firm and it is a matter to be decided by the Court for which he filed this suit for dissolution of the firm and taking accounts of the said firm. Moreover, at the stage of deciding the application for grant of the permission to the plaintiff for amendment of the plaint, it is not necessary for the Court below to examine the merits of the amendment. What the Courts are to consider whether the litigants should be permitted to amend their pleadings or not and ultimately on the case as pleaded by amendment they will succeed or not, is not a matter ordinarily to be decided at this stage. From the readings of the order of the learned trial Court, I am satisfied that it has proceeded on the assumption that only where the case pleaded or prayer made by way of the amendment is acceptable finally then only an amendment can be granted, which is wholly erroneous approach. From the readings of the order of the learned trial Court, I am satisfied that it has proceeded on the assumption that only where the case pleaded or prayer made by way of the amendment is acceptable finally then only an amendment can be granted, which is wholly erroneous approach. The matter pertains to the dissolution of the partnership firm which is carrying on business on the suit premises and in case the plaintiff-petitioner is its partner and the firm is dissolved and accounts are being rendered then it is appropriate case where regarding the premises in dispute, the matter is to be decided in this suit itself. I fail to see how it will convert the suit from the dissolution of the firm and taking account into t the suit for the recovery of the possession of the suit premises. This is not altogether different cause of action or a new case but it relates to the very suit premises on which the firm was carrying on the business. Further, the approach of the Court that the amendment will cause prejudice to the defendants is also wholly perverse. The learned trial Court has not given out any reason good, bad or indifferent how it will cause prejudice to the defendants. The learned Counsel for the defendants fails to show before this Court also how this amendment will cause any prejudice. It is not out of the context to state here that the inter se rights of the plaintiff and defendants regarding the tenancy of the suit premise has already been decided by the competent Rent Control Court. Merely because the matter is pending in the appeal it cannot be said that the amendment may not be allowed. This case clearly falls under the provisions of Order 6, Rule 17 of the Code and the amendment as prayed for in the plaint is necessary for determining the real question in controversy finally which has arisen between the parties. Merely because the matter is pending in the appeal it cannot be said that the amendment may not be allowed. This case clearly falls under the provisions of Order 6, Rule 17 of the Code and the amendment as prayed for in the plaint is necessary for determining the real question in controversy finally which has arisen between the parties. In the case of Suraj Prakash Bhasin v. Raj rani Bhasin, reported in AIR 1981 SC 485 their Lordships of Honble Supreme court held :-"the liberal principles which guide the exercise of discretion in allowing amendment are that multiplicity of proceedings should be avoided, that amendments which do not totally alter the character of an action should be readily granted while care should be taken to see that injustice and prejudice of an irremediable character are not inflicted on the opposite party under pretence of amendment, that one distinct cause of action should not be substituted for another and that the subject-matter of the suit should not be changed by amendment. Applying these principles the amendment was rightly allowed. The plaintiff apparently sought the amendment releasing that prolixity of litigation could be avoided and dissolution of partnership could finally separate the parties and quantify the shares. Where there is delay, negligence, indifference or slip-shodness on the part of the party seeking amendment, the Court will award heavy costs against the party seeking amendment and in the present case the condition of payment of costs has been imposed. " ( 5 ) REFERENCE may also be made to the another decision of the Apex Court in the case of Haridas Aildas Thadani v. Godrej Rustom Kermani, AIR 1983 SC 319 wherein it is held that :"the Court should be extremely liberal in granting prayer of amendment of pleading unless serious injustice or irreparable loss is caused to the other side. A revisional Court ought not to lightly interfere with a discretion exercised in allowing amendment in absence of cogent reasons or compelling circumstances. The test for allowing the amendment is to find whether the proposed amendment works any serious injustice to the other side. In the present case the plaintiff sought by way of amendment to insert a relief for recovery of possession. The test for allowing the amendment is to find whether the proposed amendment works any serious injustice to the other side. In the present case the plaintiff sought by way of amendment to insert a relief for recovery of possession. Neither the nature of the suit was altered nor any question of any valuable right of limitation of having accrued to the defendant being taken away by the proposed amendment arose. The district Judge allowed the amendment having clearly found that the amendment would not cause any grave or serious prejudice to the defendant. In the circumstances the high Court erred in law in interfering in revision by reversing the discretionary order of the District Judge. " ( 6 ) IN the case of Rajendra Prasad v. Kayastha Pathsale, reported in 1981 Supp. SCC 56 their Lordships of Honble Supreme Court observed that amendment of. pleadings is permissible in the interest of final decision of dispute between the parties. As stated earlier tenancy rights dispute regarding tenanted premises has already been decided between the parties. There is also no delay in filing of this application. Tenancy case has been decided only on 19-7-1996. So this amendment in the plaint is also otherwise necessary to avoid the multiplicity of the proceedings as well as for final decision of the dispute between the parties. Approach of the court below in this matter is not in consonance with the well settled principles which guide the exercise of discretion by the Courts in allowing the amendment of the pleadings. The reference may also have to two more decisions of the Apex Court - (1) Jai Jain Ram Manoharlal v. National Building Material Supply, AIR 1969 sc 1269 and (2) Ganesh Trading Company v. Moji Ram, AIR 1978 SC 484 . ( 7 ) IN the result, this Revision Application succeeds and the same is allowed and the order dated 22-6-1998 of Judge, City Civil Court, Ahmedabad quashed and set aside and the application Ex. 47 of the plaintiff-petitioner is granted and he is permitted to amend the plaint. No order as to costs. .