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2002 DIGILAW 217 (PNJ)

Mohinder Singh & Sons v. Chawa Commission Shop

2002-02-18

M.M.KUMAR

body2002
JUDGMENT M.M. Kumar, J. - This is a revision petition directed against the order dated 16.8.2000 passed by the Civil Judge (Senior Division), Gurdaspur allowing the application of the plaintiff-respondent filed under Order 6 Rule 17 read with Order 30 Rule 1 of the Code of Civil Procedure. In pursuance to the order passed, the Civil Judge has allowed amendment of the plaint by deleting the name of Sanjeev Kumar as sole proprietor and substituted it with the name of his real sister i.e. Smt. Rajesh Kanta wife of Bua Dass. Allowing the application of the plaintiff-respondent, the Civil Judge has recorded the following order :- "I have given careful thoughts to the submissions made by counsel for the parties and have perused the file. Plaintiff Chawa Commission Shop Chawa has filed the present suit to recover the suit amount from the defendants. In their written statement, the defendants have taken the plea that they were having no business transaction with the plaintiff firm whose proprietor is Sanjiv Kumar. In his cross-examination, defendant has admitted that in 1994 M/s Chawa Commission Shop has supplied paddy to their firm. He has volunteered that proprietor of the above said firm was Rajesh Kanta. They were having dealing with her. He has further deposed that he does not know that Rajesh Kanta is real sister of Sanjiv Kumar. In their written statement, defendants have no where taken the plea that they were having dealing with M/s Chawa Commission Shop, Chawa whose sole proprietor is Rajesh Kanta. Only they have simply denied that they are not having business transaction with M/s Chawa Commission Shop whose sole proprietor is Sanjiv Kumar, but during his cross-examination defendant-Mohinder Singh has admitted that their firm is having business with Chawa Commission Shop whose proprietor is Rajesh Kanta. I agree with the submission of counsel for the defendants that if the limitation has expired then the amendment cannot be allowed. But in the present suit it is neither Rajesh Kanta, not Sanjiv Kumar who has filed a suit for recovery against the defendants. In the present suit, plaintiff is Chawa Commission Shop Chawa. Plaintiff has already filed a suit within limitation. So, now the question of limitation for amendment does not arise. Defendant Mohinder Singh has himself admitted for having dealings with the plaintiff firm. Plaintiff has moved an application for making necessary amendment. In the present suit, plaintiff is Chawa Commission Shop Chawa. Plaintiff has already filed a suit within limitation. So, now the question of limitation for amendment does not arise. Defendant Mohinder Singh has himself admitted for having dealings with the plaintiff firm. Plaintiff has moved an application for making necessary amendment. So, the plea of limitation is not available to the defendants. Law regarding amendment is liberal. Rules of procedure are meant to advance the ends of justice. Real point of controversy between the parties is whether the plaintiff is entitled to recover the suit amount from the defendants. Although the application for amendment has been filed at a belated stage, but the other party can be compensated in terms of costs. So, the application filed by the plaintiff under Order 6 Rule 17 CPC for amendment of the plaint is allowed subject to payment of Rs. 1000/- as costs." 2. The facts necessary for decision of this revision petition are that a suit for recovery has been filed by the plaintiff-respondent in the name of firm M/s Chawa Commission Shop, Chawa, Tehsil Gurdaspur through its sole proprietor Sanjeev Kumar. An objection was raised in the written statement that the defendant-petitioners have no dealings with the firm M/s Chawa Commission Shop who has a proprietor Shri Sanjeev Kumar. In his cross-examination, defendant-petitioner has admitted that they have dealing with the firm but the proprietor of the firm is one Smt. Rajesh Kanta who is real sister of Sanjeev Kumar. It is appropriate to mention that defendant-petitioners had issued a cheque on 24.1.1995 which was dishonoured on 9.6.1995 and 12.6.1995. It was asserted that notice was served on the defendant-petitioners by the plaintiff-respondent on 19.6.95 and the suit was filed by the firm through Sanjeev Kumar on 12.2.1997. The application for amendment by the plaintiff- respondent was filed on 8.9.99 seeking substitution of Sanjeev Kumar with Smt. Rajesh Kanta. 3. Shri Sushil Saini, learned counsel for the defendant-petitioner has argued that the cheque in this case was issued on 24.1.1995 and it was dis-honoured twice on 9.6.1995 and 12.6.1995. In the plaint, further averments have been made alleging that the notice was served on 19.6.1995 and therefore, Smt. Rajesh Kanta now substituted could have filed the suit only upto 19.6.1998. The present suit was filed by Sh. Sanjeev Kumar on 12.2.1997. In the plaint, further averments have been made alleging that the notice was served on 19.6.1995 and therefore, Smt. Rajesh Kanta now substituted could have filed the suit only upto 19.6.1998. The present suit was filed by Sh. Sanjeev Kumar on 12.2.1997. The application for amendment was filed by the plaintiff-respondent on 8.9.1999. According to the learned counsel, therefore, the suit is clearly time barred if Smt. Rajesh Kanta is to file a suit on the date of seeking amendment. He has further argued that it is not a case of amendment of pleading attracting the judgment in the case of Prem Bakshi and others v. Dharam Dev and others, JT 2002(1) Supreme Court 34, wherein the revision petition is held to be not maintainable against the order allowing the amendment under Order 6 Rule 17 of the Code of Civil Procedure. According to him, it is a case of filing of a suit on behalf of Smt. Rajesh Kanta on 8.9.1999. In support of his submission, learned counsel has placed reliance on a judgment of this Court in the case of Jagmal Singh v. Smt. Mehma Devi, 1999(1) RCR(Civil) 76 and also judgment of the Honble Supreme Court in the case of K. Raheja Constructions Ltd. v. Alliance Ministries, AIR 1995 SC 1768. 4. On the other hand, learned counsel for the plaintiff-respondent has argued that it is a case of mere mis-description of the parties and there is no change either in the cause of action or in the pleadings. According to the learned counsel, the suit has been filed by the firm through its Manager Shri Sanjeev Kumar and that suit has been filed with the consent of Smt. Rajesh Kanta, the plaintiff-respondent who is now sought to be substituted. According to the learned counsel, it is a mere description of party which would not attract the bar of limitation. For this proposition, he placed reliance on judgment of the Supreme Court in the case of Purushottam Umedbhai and Co. v. Mani Lal and Sons, AIR 1961 SC 325 and a judgment of this Court in M/s Kisan Rice and General Mills and others v. United Commercial Bank and others, 1989(1) PLR 193. For this proposition, he placed reliance on judgment of the Supreme Court in the case of Purushottam Umedbhai and Co. v. Mani Lal and Sons, AIR 1961 SC 325 and a judgment of this Court in M/s Kisan Rice and General Mills and others v. United Commercial Bank and others, 1989(1) PLR 193. He has further argued that in so far as the bar of limitation is concerned, it would still be open to the defendant-petitioner to raise that argument and the trial Court may adjudicate on that question. For this proposition, he has placed reliance on a judgment of the Supreme Court in the case of Raghu Thilak D. John v. S. Rayappan and others, 2001(2) Civil Court Cases 298 (SC). 5. I have thoughtfully considered the rival contentions raised by learned counsel for the parties and have perused the record. The first argument of Mr. Saini, learned counsel for the defendant-petitioners that substitution of Mr. Sanjeev Kumar by Smt. Rajesh Kanta amounts to filing a fresh suit does not deserve to be accepted because the suit has been filed by the firm through a particular individual whereas the suit should have been filed through Smt. Rajesh Kanta. Moreover, the cheque was issued by the defendant-petitioners to the plaintiff-respondent firm. The suit could have been filed by an agent of the firm and it could be successfully argued that the suit was not competent merely because an agent was said to be substituted by the real proprietor. Therefore, it could not be said that it is a fresh suit by Smt. Rajesh Kanta. The other argument of Mr. Saini that the suit is deemed to have been filed fresh by Smt. Rajesh Kanta, then it would be beyond the period of limitation, has to be rejected because of the rejection of first argument that it could not be deemed that the suit was filed afresh by Smt. Rajesh Kanta. 6. Moreover, under Order 6 rule 17 of the Code amendment of all types should ordinarily be allowed because it would minimise the litigation. In case there is a dispute even if with regard to limitation that can be allowed to be raised before the Civil Court. This view is supported by the judgment of the Supreme Court in Raghu Thilaks case (supra). In case there is a dispute even if with regard to limitation that can be allowed to be raised before the Civil Court. This view is supported by the judgment of the Supreme Court in Raghu Thilaks case (supra). The question of limitation has been left open to be decided by the Civil Court in Raghu Thilaks case (supra). The judgment of this Court in the case of M/s Kisan Rice and General Mills case (supra) would also advance the case of the plaintiff-respondent because there the suit was filed by one person on behalf of the Bank whereas it was required to be filed by the two as they were jointly authorised by the power of attorney. This Court rejected the similar contention in that case and held that the description of the plaintiff Bank could be allowed to be amended and instead of the suit having been filed by one person amendment could be allowed that the same has been filed by two persons. In the present case, the suit has been filed by the firm wrongly describing the name of the person through whom the suit has been filed. 7. Another reason to reject the petition is that in Prem Bakshis case (supra) Supreme Court has concluded that an amendment under order VI rule 17 of the Code cannot conceivably cause any prejudice to the opposite party as there would be adequate opportunity available. Therefore, I am not inclined to exercise my jurisdiction under Section 115 of the Code. 8. Before parting it would be pertinent to deal with the argument raised by the learned counsel for the plaintiff-respondent which is based on order XXX rules 1 and 2 of the Code. The provisions of order XXX rules 1 and 2 of the Code which deals with suits by or against firms and persons carrying on business in their names and other than their own. Provisions of order XXX rules 1 and 2 of the Code reads as under : "1. Suing of partners in name of firm. The provisions of order XXX rules 1 and 2 of the Code which deals with suits by or against firms and persons carrying on business in their names and other than their own. Provisions of order XXX rules 1 and 2 of the Code reads as under : "1. Suing of partners in name of firm. - (1) Any two or more persons claiming or being liable as partners and carrying on business in [India] may sue or be sued in the name of the firm (if any) of which such persons were partners at the time of accruing of the cause of action, and any party to a suit may in such case apply to the Court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in such firm, to be furnished and verified in such manner as the Court may direct. (2) Where persons sue or are sued as partners in the name of their firm under sub-rule (1), it shall, in the case of any pleading or other document required by or under this Code to be signed, verified or certified by the plaintiff or the defendant, suffice if such pleading or other document is signed, verified or certified by any one of such persons. 2. Disclosure of partners names. - (1) Where a suit is instituted by partners in the name of their firm, the plaintiffs or their pleader shall, on demand in writing by or on behalf of any defendant, forthwith declare in writing the names and places of residence of all the persons constituting the firm on whose behalf of the suit is instituted. (2) Where the plaintiffs or their pleader fail to comply with any demand made under sub-rule (1), all proceedings in the suit may, upon an application for that purpose, be stayed upon such terms as the Court may direct. (2) Where the plaintiffs or their pleader fail to comply with any demand made under sub-rule (1), all proceedings in the suit may, upon an application for that purpose, be stayed upon such terms as the Court may direct. (3) Where the names of the partners are declared in the manner referred to in sub-rule (1), the suit shall proceed in the same manner, and the same consequences in all respects shall follow, as if they had been named as plaintiffs in the plaint." A conjoint reading of the above rules shows that any two or more persons claiming themselves as partners and carrying on business in India may sue in the name of the firm of the which such persons were partners at the time when cause of action arose. It has further been provided that the names of the partners has to be disclosed on the demand of the defendants and the refusal to do so may result into stay of the suit. 9. The argument raised by Mr. M.S. Lobana relying on Purushottam Umedbhais case (supra) cannot be accepted because in that case a partnership firm of Singapore carrying on business in India too had filed the suit and the amendment sought in the suit was that the name of the firm Mani Lal and Sons as plaintiffs be struck off and in place thereof the names of five Partners be entered as plaintiffs. Obviously, provisions of order XXX rules 1 and 2 would be attracted. In the present case, the suit has been filed by a firm which is a proprietor concern and would not be covered by Section 4 of the Partnership Act, 1932 because it presupposes two or more than two persons as a member of the partnership firm. Therefore, the judgment of the Supreme Court in Purushottam Umedbhais case (supra) would not be applicable. For the reasons recorded above, this revision petition fails and the same is dismissed. Revision dismissed.