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2000 DIGILAW 141 (PNJ)

Om Parkash v. Guru Nanak Rice Mills

2000-02-04

V.M.JAIN

body2000
JUDGMENT V.M. Jain, J. - This is a revision petition against the order dated 7.10.1999 passed by the trial Court allowing the application of the plaintiff under Order 6 Rule 17 for the amendment of the plaint. 2. The facts which are necessary for the disposal of the present revision petition are that M/s Guru Nanak Rice Mill through its partners Sukhjinder Singh and Ajay Kumar had filed a suit for the recovery of Rs. 48,41,758/- against Om Parkash and his son Amrit Lal, defendants No. 1 and 2 respectively. The plaint is dated 3.11.1998. In the said suit it was alleged that plaintiff firm was a partnership firm and Sukhjinder Singh and Ajay Kumar are partners. It was further alleged that defendant No. 2 Amrit Lal who is son of defendant No. 1 Om Parkash is also one of the partners of the firm. It was alleged that the plaintiff firm was having a bank account with Oriental Bank of Commerce and since the opening of the said account, defendant No. 1, Om Parkash as Manager of the plaintiff firm was operating the said account. It was alleged that taking advantage of the authority to operate the bank account, defendant No. 1 had withdrawn a sum of Rs. 29,29,000/- on the basis of various cheques and after withdrawal of the said amount, defendant No. 1 in connivance with defendant No. 2 had mis-appropriated the same to their own use. It was accordingly prayed that a decree for Rs. 48,41,758/- (Rs. 29,29,000/- as principal and Rs. 19,12,758/- as interest) be passed in favour of the plaintiff and against the defendants. 3. Since in the partnership deed dated 1.10.1992, there was an arbitration clause, defendant No. 2 Amrit Lal invoked the provision of arbitration clause for staying the proceedings in the suit. Thereafter, at the behest of the plaintiff firm, the suit against defendant No. 2 Amrit Lal was got dismissed as withdrawn on 4.1.1999. Thereafter, defendant No. 1 Om Parkash filed written statement dated 25.1.1999 alleging therein that the plaintiff firm stood dissolved on the death of Nachhatar Singh, one of the partners. It was admitted that Amrit Lal was a partner of the firm, but it was alleged that the partnership came to an end on the death of Nachhatar Singh and defendant No. 2 was no longer a partner. It was admitted that Amrit Lal was a partner of the firm, but it was alleged that the partnership came to an end on the death of Nachhatar Singh and defendant No. 2 was no longer a partner. It was alleged that the partners of the firm gave a clean chit to the answering, defendant vide writing dated 24.11.1995 and had acknowledged that Rs. 20,000/- were towards the arrears of salary payable to him and the answering defendant had filed a separate suit for the recovery of the said amount. 4. The case was at the stage of filing replication when the plaintiff firm filed an application dated 1.2.1999 under Order 6 rule 17 read with Section 151 CPC seeking permission to amend the plaint. It was alleged that certain facts were inadvertently omitted which were necessary to be incorporated. It was alleged that the plaintiff had failed to mention in the plaint that the plaintiff firm had been actually dissolved on 9.3.1997 on the death of Nachhatar Singh and that the present suit for recovery had been filed by a dissolved partnership firm. It was further alleged suit against defendant No. 2 was dismissed as withdrawn on 4.1.1999 and the above said omission and the withdrawal had necessitated the amendment of the plaint. It was alleged that wherever the word partnership firm had been used the plaintiff may be allowed to use the expression dissolved partnership firm and wherever the word partners is mentioned, the plaintiff may be allowed to replace the same with the expression through its ex-partners. It was further alleged that in the plaint wherever liability of the defendants was claimed as joint and severally, it should be replaced only with the word defendant by deleting jointly and severally. It was further alleged that the plaintiff firm be also allowed to allege that the firm was constituted vide partnership deed dated 1.10.1992 and it stood dissolved on 9.3.1997 on the death of Nachhatar Singh, one of the partners. It was further alleged that in para 7 of the plaint, the allegation that defendant No. 1 in connivance with defendant No. 2 had mis- appropriated the amount be allowed to be amended by alleging that the defendant mis-appropriated the amount. 5. It was further alleged that in para 7 of the plaint, the allegation that defendant No. 1 in connivance with defendant No. 2 had mis- appropriated the amount be allowed to be amended by alleging that the defendant mis-appropriated the amount. 5. The above said application of the plaintiff firm for amendment of the plaint was opposed by Om Parkash defendant by filing written reply dated 22.2.1999 alleging therein that the proposed amendment could not be allowed as on the date of filing of the amendment application, the suit for recovery was clearly barred by time and the amendment of the plaint could not be allowed after the expiry of limitation period. 6. Learned trial Court after hearing both sides and perusing the record allowed the amendment application vide order dated 7.10.1999 and allowed the plaintiff to amend the plaint. It is against this order of the learned trial Court that Om Pakash has filed the present revision petition. 7. Notice of motion was issued. Counsel for the parties have been heard. 8. Learned counsel appearing for the petitioner has submitted that the present suit on the basis of the amended pleadings was barred by time and as such plaintiff could not be allowed to amend the plaint and the plaintiff could not be allowed to raise inconsistent pleadings. Reliance was placed on 1971 Current Law Journal 924, Kulwant Singh etc. v. Sher Singh etc., 1995(1) The Punjab Law Reporter 763, Jagga Singh v. Harpal Singh, 1995(2) RRR 239 (P&H). and AIR 1957 Supreme Court 363, Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil. On the other hand the learned counsel appearing for the plaintiff-respondents has submitted that by allowing the amendment the trial Court has allowed the plaintiff to correct the description of the plaintiff firm and its partners and there was no change of cause of action and as such there was no question of limitation arising as a result of the amendment of the plaint. Reliance was placed on AIR 1969 Supreme Court 1267, Jai Jai Ram Manohar Lal v. National Building Material Supply and AIR 1979 Calcutta 10, Satya Narayan Todi v. Surekha Chowdhury. 9. After hearing both sides and after perusing the record, I find no merit in the present revision petition. Reliance was placed on AIR 1969 Supreme Court 1267, Jai Jai Ram Manohar Lal v. National Building Material Supply and AIR 1979 Calcutta 10, Satya Narayan Todi v. Surekha Chowdhury. 9. After hearing both sides and after perusing the record, I find no merit in the present revision petition. As referred to above the plaintiff firm had filed the suit against Om Parkash and Amrit Lal alleging therein that defendant No. 1 Om Parkash had illegally withdrawn a sum of Rs. 29,29,000/- from the bank and mis-appropriated the same in connivance with defendant No. 2 Amrit Lal. Subsequently, plaintiff firm got the suit against defendant No. 2 dismissed as withdrawn on 4.1.1999. It was thereafter that Om Parkash had filed the written statement taking various objections. It was on the basis of the pleas taken by Om Parkash defendant in his written statement that the plaintiff firm got wiser and filed the application for amendment of the plaint so as to take up the plea that the firm stood dissolved on the death of Nachhatar Singh and that the suit was being filed by the dissolved firm through its ex-partners. It was also alleged that the liability of the defendants being jointly and severally also required amendment as after the withdrawal of the suit against defendant No. 2 Amrit Lal there was only one defendant and there was no question of liability being jointly and severally. Similarly, the allegation in para 7 of the plaint was to be amended in which it was alleged that defendant Om Parkash in connivance with defendant No. 2 had mis-appropriated the amount. By way of amended pleadings the plaintiff wanted to allege that the amount was mis-appropriated by the Om Parkash defendant inasmuch as the suit against defendant No. 2 Amrit Lal already stood dismissed as withdrawn. In my opinion, all these amendments and had been rightly allowed by the learned trial Court. No question of limitation would arise on the facts and circumstances of the present case nor could it be said that the plaintiff has been allowed to raise inconsistent pleas by way of amendment of the plaint. 10. In my opinion, all these amendments and had been rightly allowed by the learned trial Court. No question of limitation would arise on the facts and circumstances of the present case nor could it be said that the plaintiff has been allowed to raise inconsistent pleas by way of amendment of the plaint. 10. While allowing the plaintiff to amend the plaint, the learned trial Court had placed reliance on the law laid down by their Lordships of the Supreme Court in the case reported as AIR 1978 Supreme Court 484 in which it was held that where a suit for recovery of money due under a promissory note was filed by a firm through a partner, the amendment of the plaint on the ground that the partnership firm already stood dissolved on the date of filing the suit and that the suit was instituted by one of the partners of a dissolved firm could not be refused. It was further held in the said authority that such an amendment would not alter the case of action or the character of the suit nor it would change the identity of the plaintiff who remain the same and only the capacity of the plaintiff suing had been corrected. In my opinion, the law laid down in this authority would fully apply to the facts of the present case. In AIR 1969 Supreme Court 1267 (supra) it was held by their Lordships of the Supreme Court that since the name in which the action was instituted was merely a misdescription of the original plaintiff, no question of limitation arises and the plaint must be deemed on amendment to have been instituted in the name of the real plaintiff, on the date on which it was originally instituted. 11. Similarly in AIR 1979 Calcutta 10 (supra) it was held by a Division Bench of the Calcutta High Court that where the amendment was sought by describing X as partner of the corporation and impleading the retired partner as defendant, there was no change of cause of action or of the relief claimed and such amendment can be allowed even after the expiry of the statutory period of limitation. The various authorities relied upon by the learned counsel for the petitioner, in my opinion, would have no application to the facts of the present case. The various authorities relied upon by the learned counsel for the petitioner, in my opinion, would have no application to the facts of the present case. In 1995(1) PLR 763 (supra) the defendant wanted to amend the written statement. Originally the defendant had taken the plea that he was in permissive possession of the property and under those circumstances it was held that it was not open to the defendant now to contend that he was in adverse possession of the property. In 1971 Current Law Journal 924 (supra) it was held that the proposed amendment introduced a fresh claim which had become time barred could not be allowed. Similarly in AIR 1957 Supreme Court 363 (supra) it was held that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, amendment must be refused. However, the law laid down in these authorities would have no application to the facts of the present case inasmuch as the cause of action of the plaintiff remains the same and as such there is no question of the suit being barred by time. No other point has been urged before me in this revision petition. For the reasons recorded above, finding no merit in this revision petition, the same is hereby dismissed. There shall be no order as to costs. Revision dismissed.