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2002 DIGILAW 629 (MAD)

F. Murugavel v. K. Palanivel and another

2002-07-17

K.SAMPATH, P.SHANMUGAM

body2002
K.Sampath, J.: The plaintiff in O.S. No.719 of 1980 on the file of the II Additional Subordinate Judge’s Court, Erode, is the appellant in the appeal. 2. The suit was filed for partition and separate possession of the plaintiff’s l/6th share in the joint family properties and the joint family business concerns. The pleadings in the present case run to more than 40 pages. It is not necessary to narrate in detail the case of the respective par-ties. Suffice it to briefly state the facts necessary for the disposal of the appeal, from the view point of the respective parties. 3. The pleadings in the present case run to more than 40 pages. It is not necessary to narrate in detail the case of the respective par-ties. Suffice it to briefly state the facts necessary for the disposal of the appeal, from the view point of the respective parties. 3. The case of the plaintiff is as follows: The plaintiff and defendants 1 to 3 are the sons of one N.T.P Kandasami Mudaliar and the fourth defendant/Venkatammal; N.T.P. Kandasami Mudaliar and N.T.P. Muthusami Mudaliar were members of a Hindu undivided family; in a partition of the joint family properties between the two brothers, the properties set out in schedules ‘A’ and ‘B’ to the plaint were allotted to N.T.P. Kandasami Mudaliar’s branch consisting of himself, defendants 1 to 3, the plaintiff and another son one Ramalingam; N.T.P. Kandasami Mudaliar died in 1954 and Ramalingam died unmarried in 1976; the joint family properties of N.T.P. Kandasami Mudaliar’s branch consisted of a Rice Mill by name Jothi Rice Mills, Kodumudi, 8 acres of Nanjai and punjai lands at Elunoothimangalam, and a house site at Thiruvotriyur at Madras; after the demise of Kandasami Mudaliar, a land belonging to the joint family at Kodumudi was sold, and with the proceeds a medical shop under the name and style of ‘Uma Medicals’ was opened in 1970; there were other businesses, namely, Palaniavel and Company in the premises of Jothi Rice Mill, Kodumudi, M/s. Phonix Industries and M/s. Balu & Co; all of which concerns were started with joint family funds and run on partnership basis; after the death of Kandasami Mudaliar, the first defendant as the eldest was in management; business at Uma Medicals became a prosperous concern and earned huge profits to an extent of Rs.2,56,000; the other concerns were also equally prosperous; the plaintiff requested the first defendant to divide the family properties and business shares in the partnerships and allot him his due share; there was no immediate response; in 1977, in a panchayat the first defendant made, it appear that there were debts to the tune of Rs.2,69,445.22 in the business conducted by the joint family and the debt had to be arranged to be paid before any division of joint family properties could be done; the plaintiff had no means to ascertain the correctness of the existence or extent of the debts nor was he allowed to peruse the accounts; Panchayatdars did not verify the correctness of the existence of the debts and forced the plaintiff to agree to the terms of the Muchalika executed on 5.2.1978; a release deed was executed on 12.4.1978 pursuant to the aforesaid Muchalika; the plaintiff signed the Muchalika and executed the release solely on the faith and the representation made by the first defendant; in 1979 when he procured the income tax returns filed by the first defendant in respect of M/s.Uma Medicals, Erode, K.Palanivel and Co. in Jothi Rice Mills at Kodumudi he found that the assertion by the first defendant before the Income Tax Officer that the business incurred a debt of Rs.2,69,445.22 was a patent and blatant falsehood; the value of stock of medicine in Uma Medicals’ Books of account was Rs.2,32,030.92 as per the Income Tax Return filed as on 27.8.1979; ‘but, in the account copy submitted by the first defendant to the panchayat for the same period ending 27.8.1977, the value of the stock was suppressed to a ridiculous amount of Rs.87,089.01 (at Uma Medicals Rs.77,588.71 and Delux Drug House, Pallipalayam Rs.9.500.30) thereby suppressing the value of the stock by Rs. 1,44,942.88; the big asset amounting to Rs.1,39,233.45 (transferred to Palanivel and Co., Kodumudi) was omitted to be shown in the panchayat, while the first defendant had shown that Uma Medicals had run into debts to the extent of Rs.2,69,445.22; the plaintiff pointed this out to K.C. Kandasmi Mudaliar, one of the Panchayatdars; after a prolonged correspondence he was obliged to accept that the account copy given by the first defendant was irregular and incorrect; he also wrote to S.Chenniappa Mudaliar (plaintiff’s wife’s grandfather) that he called for the first defendant and his clerk, who prepared the account to set right the account and provide him with a genuine, correct and true account and also to prepare two trial balance sheets as on 1.4.1977 and another as on 27.8.1977 in order to locate the irregularity but, no effort was taken; the suit therefore came to be filed. 4. 4. The first defendant filed a written statement contending as follows: Uma Medicals was established in 1970; defendants 1 to 3, deceased Ramalingam and one Sri S.P. Sreenivasan were partners in M/s. Balu and Company, established in 1972; it became defunct in 1975; M/s.Phoenix Industries came into existence on 25.8.1975 and stopped doing business in 1977 and thus became defucnt; in Phoneix Industries, the plaintiff, the fourth defendant and the wives of defendants 1 to 3 were the only partners, defendants 1 to 3 were not partners; in K.Palanivel and company, which was established on 5.12.1973, the plaintiff, defendants 1, 3 and Punnaiavathi, wife of the second defendant alone were partners, the fourth defendant was not a partner; all the firms were registered under the Partnership Act; all the individuals were assessed to Income-Tax from the year 1971; the difference in age between the successive brothers not being more than one year, seniority among the brothers never conferred any advantage enabling one to take any position of command in the family; in 1970 the plaintiff himself was 25 years old; it was totally wrong that the first defendant was in sole management or control of the family properties and businesses; K.Palanivel and company which was started for the purpose of running a rice mill styled as Jothi Rice Mill incurred heavy loss; though Uma Medicals made profit, as the other firms were incurring heavy losses, the amounts were drawn out of the funds of Uma Medicals for the other firms and the family expenses, and heavy interest also had to be paid on the borrowings of Uma Medicals to the tune of Rs. 1,48,077.90 after 27.8.1977; all the brothers participated in the management of Uma Medicals; as no individual brother could exercise control against any other brother, and as the plaintiff, defendants 1 to 3 and the since deceased Ramalingam had no index about the economics of running a drug house, they went about drawing heavily from the sale proceeds of the firm of Uma Medicals almost every day; the plaintiff drew heavily from the funds of M/s.Uma Medicals and invested in various projects without knowing even the fundamentals of such projects; since the firms were registered partnerships and there were assessments, it could not be contended that the various firms constituted any part of the family properties; it was only towards the end of 1977, the plaintiff demanded a partition; the Panchayatdars applied their mind to the materials produced and found that the liabilities exceeded the assets by Rs.2,69,445.22; at the instance of the Panchayatdars, it was agreed and incorporated in the Muchalika that defendants 1 to 3 should take over Jothi Rice Mill with all its appurtenances described as item 1 of the plaint ‘B’ Schedule and item 1 of the plaint ‘A’ Schedule, and a Standard Herald Motor Car belonging to the family; sell the three items of property aforesaid, collect various amounts due from the various parties, and with the amounts so realised, discharge the liabilities amounting to Rs.2,69,445.22 as found by the Panchayatdars, and accepted by the plaintiff and defendants 1 to 4; under the terms of the Muchalika, the plaintiff was put in exclusive control of the business M/s.Deluxe Drug House at Pallipalayam along with stock, furniture, frigidaire, electrical fittings, etc.; the plaintiff had also been appropriating the income from the said business for his own exclusive purposes; the plaintiff had also changed the name of Deluxe Drug House as Viji Medicals after his wife; the plaintiff also received two amounts, namely, Rs.9,500 and Rs.5,000 under two receipts dated 7.6.1978 and gave up all his rights in all the other family businesses; at the instigation of his parents-in-law the plaintiff wanted to go back on the panchayat agreement; the Muchalika was executed on 5.2.1978 and more than two months after that on 12.4.1978 he executed a release deed and passed receipts on 7.6.1978 for amounts received; thus, he had made defendants 1 to 3 to act to their prejudice on the strength of such acceptance and execution of the Muchalika’ and the release deed; he could not be allowed to go back on the panchayat agreement; even otherwise, as regards the firms, the only remedy available to him was to seek dissolution of partnership and accounts; Kandasami Mudaliar was referring only to a slight discrepancy in the trial balance and not to any discrepancy as alleged in the plaint; item 3 of Schedule ‘A’ had been encroached upon by third parties; proceedings had been taken; the suit was liable to be dismissed. 5. A reply statement has been filed by the plaintiff reiterating his case in the plaint and disputing the various averments in the written statement. 6. The second defendant adopted the written statement of the first defendant. Defendants 3 to 5 remained ex parte. 7. On the above pleadings, the learned Subordinate Judge, Erode, framed the following issues: (1) Whether the panchayat Muchalika and the subsequent release deed are valid and whether it will bind the plaintiff? (2) Whether the Muchalika was brought about by practice of fraud and misrepresentation? (3) Whether the suit without seeking to set aside Muchalika and the release deed is maintainable? (4) Whether the plaintiff to seek partition is to return the stocks in trade and cash to the joint family or not? (5) Without asking for dissolution of the partnerships can the plaintiff seek partition? (6) What are the properties available for partition? (7) Whether the plaintiff is entitled to partition? (8) Whether the suit is not properly valued for the purpose of Court fee? (9) Whether the suit is bad for non-joinder of various firms? (10) To what relief? 8. On the side of the plaintiffs Exs.A-1 to A-49 were marked and the plaintiff examined himself as P.W.1. On the side of the defendants Exs.B-1 to B-49 were marked and D.Ws.1 to 4 were examined. The first defendant examined himself as D.W.1, Panchayatdars as D.Ws.2 and 3 and one M.C.Venkatachalam as D.W.4. 9. There was a Commissioner appointed and there were documents marked as Court documents Exs.C-1 to C-11 and Court witnesses C.Ws.1 to 8 were examined. 10. The learned Subordinate Judge found that the plaintiff had accepted the panchayat, signed the Muchalika and followed it up with the release deed and they would be binding on him, that the Muchalika had not been brought about by practice of fraud, and that the suit was not maintainable without seeking cancellation of the Muchalika and the release deed. The learned Subordinate Judge further held that since the plaintiff had not offered to disgorge the benefits he got under the panchayat, it was not necessary to bring them back to the joint family for being partitioned, that the suit for partition without seeking dissolution of the different firms was not maintainable, that the suit had not been properly valued for the purpose of Court fee and that, there were no properties available for partition. So holding, by judgment and decree, dated 21.1.1986, the learned Subordinate Judge dismissed the suit. Aggrieved, the present appeal has been filed. 11. The learned senior counsel for the appellant first submitted that even with regard to properties, which admittedly continued to be joint, the suit has been dismissed, which is clearly erroneous. 12. So far as this point is concerned, there is no contest. With regard to ‘A’ schedule and ‘B’ schedule item 1, the counsel appearing for the contesting respondents have made it clear that the plaintiff is entitled to his share in the entirety of ‘A’ schedule and ‘B’ schedule item 1. The lower Court has, apparently, over looked that. Properties not covered by the panchayat and the Muchalika continued to de divisible. The plaintiff would be entitled to his l/6th share in the these properties. 13. The learned senior counsel by referring to the various entries in the accounts, then contended that the first defendant had played a fraud in that, he had exaggerated the debts, that the panchayatdars had accepted his mere representation without insisting on the production of correct accounts for verification at the panchayat, that this would clearly show that a fraud had been played on the plaintiff and that therefore the panchayat, the Muchalika and the release deed would not bind the plaintiff. The learned Senior Counsel with particular reference to Ex.B-17 submitted that the debt in a sum of Rs.2,69,445.22 shown in Ex.B-17 is factually false and that there should have been a credit in favour of the joint family. The learned senior counsel referred to Ex.A-30 and submitted that a sum of Rs. 1,39,233.45 had been transferred from Erode Uma Medicals to Kodumudi Jothi Rice Mill, but, that had not been taken into consideration by the Panchayatdars and they had not insisted on checking up the said entry with relation to Kodumudi Rice Mill. The learned Senior Counsel also submitted that the stock in Erode Uma Medicals as shown in Ex.A-30 in a sum of Rs.2,93,676.66 had not been taken into consideration and the value of stocks had been shown at a lesser figure, namely, Rs.82,089.01. 14. The learned Senior Counsel also submitted that the stock in Erode Uma Medicals as shown in Ex.A-30 in a sum of Rs.2,93,676.66 had not been taken into consideration and the value of stocks had been shown at a lesser figure, namely, Rs.82,089.01. 14. On this aspect Mr.Peppin Fernando and Mr.Seshadri, learned counsel representing the contesting respondents, submitted that the plaintiff had perused the accounts and satisfied himself about the correctness and genuineness of the accounts and only thereafter he had signed the Muchalika and followed it up by a release deed. He had also acted on the compromise, received amounts and passed receipts. Even otherwise, according to the learned counsel, entries are not fraudulent entries as they are supported by other entries in the other partnerships belonging to the joint family and no exaggerated a claim regarding debts had been made nor the value of the stocks understated. The plaintiff is a qualified pharmacist. He had also been running a firm by himself. Two elders closely related to the family were associated with the panchayat and after a thorough discussion on the basis of the documents and accounts produced, they arrived at a final solution and the mode of division was reached. 15. The questions for consideration in the appeal are: (1) Whether the Muchalika was brought about by practice of fraud and misrepresentation and therefore not binding on the plaintiff? (2) Whether the suit without seeking to set aside the Muchalika and the release deed is maintainable? (3) Whether the suit for partition of partnership business without asking for dissolution maintainable? 16. As rightly pointed out by the lower Court and also by the learned counsel for the contesting respondents a compromise was effected in February, 1978 and two months thereafter the plaintiff executed a release deed and a further two months thereafter he received a sum of Rs. 14,500 and passed two receipts under Exs.B-21 and B-22. The plaintiff had all the time in the world to satisfy himself about the genuineness of the accounts produced. He could very well have refused to execute the release and sought for reopening of the partition. If really there had been any discrepancy with regard to the amount of debts, the plaintiff ought to have brought it to the notice of the Panchayatdars between the date of his signing the Muchalika and his executing the release deed. He could very well have refused to execute the release and sought for reopening of the partition. If really there had been any discrepancy with regard to the amount of debts, the plaintiff ought to have brought it to the notice of the Panchayatdars between the date of his signing the Muchalika and his executing the release deed. This he has not done. There was an objection raised with regard to receiving Ex.B-18, agreement among the parties Muchalika as a document in the case on the ground that it was a partition deed, and that without proper stamp duty and registration, it should not be received in evidence. The first defendant paid the stamp duty and thereafter it was marked as Ex.B-18. It did not deal with any rights in prasenti in respect of any immovable properties. It was an arrangement simpliciter among the parties to have a panchayat. What it says is that because the debts of the family were more than the value of the assets of the family, defendants 1 to 3 were to despose of the family properties and discharge the debts and till such time the debts were discharged, they were to manage the properties, and that the plaintiff had no liability with regard to family debts, that he was to get rights only in Delux Drug House at Pallipalayam in respect of which defendants 1 to 4 would not have any rights. 17. Having found that under Ex.B-18 there was no partition effected in respect of the immovable properties belonging to the family, the learned Judge, indeed, made a mistake in not granting a decree with regard to those items in favour of the plaintiff. Even at the beginning of this judgment we have referred to this. 18. The developments that pursuant to his signing the Muchalika he executed a release under Ex.B-37 on 12.4.1978, got the licence in respect of M/s.Deluxe Drug House changed in his name and thereafter transferred it in the name of his wife, renamed the shop as Viji Medicals and has been running the business - the plaintiff has deliberately suppressed in the plaint. That these things happened would clearly show that Ex.B-18 was accepted, and that it came into effect and was acted upon. The plaintiff had gone to the extent of saying in his evidence that Deluxe Drug house belonged to him separately. That these things happened would clearly show that Ex.B-18 was accepted, and that it came into effect and was acted upon. The plaintiff had gone to the extent of saying in his evidence that Deluxe Drug house belonged to him separately. If really, as pointed out by the learned Subordinate Judge, Deluxe Drug House belonged exclusively to him, there would not have been any necessity for the Muchalika to refer to it. The Muchalika, as already noted, was followed by Ex.B-37 release deed, dated 12.4.1978. Ex.B-18 is dated 27.8.1977. More than 6 1/2 months were over by then. Though the fourth defendant has been mentioned as a party to Ex.B-37, she did not sign the same. Since the plaintiff had signed that, it would be binding on him. More than that the plaintiff had received Rs.14,500 and passed two receipts under Exs.B-21 and B-22. In the evidence, the plaintiff had also not stated that Ex.B-18/ Muchalika was obtained by practice of fraud and misrepresentation. He feigned ignorance of the family business and deposed that only the first defendant as eldest member was managing the businesses. He also further deposed that the Panchayatdars had agreed to rectify any mistake if found in the accounts produced. At the time panchayat took place, the plaintiff was 32 years old. As already stated he was an educated person and the stand taken by him that he was coerced into signing or that some fraud was played on him, cannot at all be accepted and in our view it has been rightly rejected by the lower Court. No motive has been alleged against the panchayatdars. 19. From Exs.B-27 and B-28, relating to the partnership of Uma Medicals, and Exs.B-1 to B-14 it would be clear that like his brothers the plaintiff had also taken an active role in running the family businesses. The plaintiff had also accepted that there was separate assessment for each of the partners in the different firms. Exs.B-2 to B-4 which are statements of accounts relating to Uma Medicals have been signed by the plaintiff himself. He had also signed the order forms as would be evident from Exs.B-5,6,7,9 and 11 to 14. Ex.B-10 is the letter written by the plaintiff on behalf of Deluxe Drug House to the Town Panchayat for reduction of profession tax. Exs.B-2 to B-4 which are statements of accounts relating to Uma Medicals have been signed by the plaintiff himself. He had also signed the order forms as would be evident from Exs.B-5,6,7,9 and 11 to 14. Ex.B-10 is the letter written by the plaintiff on behalf of Deluxe Drug House to the Town Panchayat for reduction of profession tax. Similarly, Ex.B-29 is the letter written by the plaintiff for Jothi Rice Mill, and Ex.B-8 is the receipt relating to payment of sales tax containing plaintiff’s signature. That the plaintiff had been actively involved in the management of the various businesses, is also evident from Exs.B-24, B-38 and B-39. He had also signed the prescription register in Uma Medicals. That has been marked as Ex.B-23. Though he disputed his signature in that, he had not pleaded that it had been prepared fraudulently for the purpose of the case. From Exs.B-15, B.-27 and B-28 it would be evident that all the partners had equal rights with regard to Uma Medicals partnership firm and none of the partners had any special privilege. D.Ws.1 to 3 have deposed that it was only the plaintiff who had taken the list of stocks for Uma Medicals at the time of panchayat. The plaintiff had denied that. Ex.B-19 is such a list and the plaintiff had corrected the price of a particular medicine and that correction has been marked as Ex.B-20. Thus, we are satisfied that the plaintiff had voluntarily accepted the panchayat, been a party to the Muchalika, acted on it, deliberately executed the release deed, entered into sole ownership of Delux Drug House, transferred the licence in the name of his wife and renamed the shop as Viji Medicals. It is not open to him to beat a retreat, turn round and ask for an exercise afresh. We are also satisfied that there is no defalcation of accounts. In any event the same is not established by the plaintiff. The lower Court has rightly held against the plaintiff. The lower Court has further found that without praying for cancellation of the Muchalika and the release deed, the present suit for partition is not maintainable and this finding in our view is unexceptionable. 20. In any event the same is not established by the plaintiff. The lower Court has rightly held against the plaintiff. The lower Court has further found that without praying for cancellation of the Muchalika and the release deed, the present suit for partition is not maintainable and this finding in our view is unexceptionable. 20. On the question whether the suit for partition in respect of the alleged partnership businesses is maintainable, it is to be noted that all the partners of the different firms are not before the Court and the prayer is not for dissolution of partnership firms and admittedly none of the firms has been dissolved. Without making all the partners parties and without praying for dissolution, the plaintiff cannot ask for his share of the partnership businesses. The prayer in the suit is wholly misconceived and rightly has the lower Court held so. 21. Mr.Kalyanasundaram, learned senior counsel, made a fervent appeal before us for a remand so that there could be an amendment of the pleadings making all the partners of the firms as parties to the suit so that there could be a final adjudication. The learned senior counsel submitted that the mistake has been that of the counsel and it should not visit upon the litigants and in support of this the learned Senior Counsel relied on the following decisions: (1) M/s.Concord of India Insurance Company v. Nirmala Devi, A.I.R. 1979 S.C. 1666: (1979)2 S.C.J. 415; (2) Rafiq v. Munshilal, A.I.R. 1980 S.C. 1400 and (3) B.K.N. Pillai v. R.Pillai, (2000)2 M.L.J. 20 (S.C): A.I.R. 2000 S.C. 614. 22. The learned senior counsel further contended that the Muchalika and the release deed having been brought about by fraudulent means they can be ignored and need not be set aside. For this proposition he relied on the decision in Khata Chinna Eswarareddi v. Kukkala Reddigari Venkatachelamma Reddi, A.I.R. 1954 Mad. 83. 23. We have already held that the plaintiff has been a consenting subscriber to Exs.B-18 and a conscious party to B-37 and unless he avoids them, he cannot maintain the suit. The decision relied on does not help the plaintiff’s case. 24. As regards the request of the learned senior counsel for a remand, we are unable to accept this for more reasons than one. The suit is of the year 1980. Twenty two long years have elapsed. The decision relied on does not help the plaintiff’s case. 24. As regards the request of the learned senior counsel for a remand, we are unable to accept this for more reasons than one. The suit is of the year 1980. Twenty two long years have elapsed. It is very unlikely that any old documents relating to the various partnerships would be still available. There is no explanation as to what the plaintiff was doing all these years. If there is to be a remand it would only open a Pandora’s box and the litigation will never come to an end. Again, we have found that the plaintiff had accepted the panchayat and acted on it. It is not as if he was coerced into accepting the panchayat. Respectable family elders had donned the mantle of panchayatdars and brought about a settlement. The plaintiff had taken his own time to mull over the terms of the panchayat and executed a release deed accepting the terms and transferred the firm which fell to his share to the name of his wife. The others also had altered their position. We have also found that the alleged defalcation of accounts by the first defendant making fictitious entries and projecting a picture that the firms were in the red and had incurred loss is not established. The plaintiff complains that the posting of a particular amount as a debit entry was a fraudulent act. According to him he came to know about the fake entry only at the time he perused the income tax returns. This he ought to have ascertained prior to his signing the panchayat Muchalika at least before executing the release and acting on the terms of the panchayat. He is an educated person and that too a pharmacist. He had also been running a firm on his own. He was in the know of things. It is too late in the day to seek a fresh opportunity. 25. In M/s. Concord of India Insurance Company v. Nirmala Devi, A.I.R. 1979 S.C. 1666: (1979)2 S.C.J. 415, relied on by the learned senior Counsel, it is observed as follows: “The law is settled that mistake of counsel may in certain circumstances be taken into account in condoning delay although there is no general proposition that mistake of counsel by itself is always a sufficient ground. It is always a question whether the mistake was bona fide or as merely a device to cover an ulterior purpose such as latches on the part of the litigant or an attempt to save limitation in an underhand way......Legal advice given by the members of the legal profession may sometimes be wrong even as pronouncement on questions of law by courts are sometimes wrong. An amount of latitude is expected in such cases for, to err is human and laymen, as litigants are, may legitimately lean on expert counsel in legal as in other departments, without probing the professional competence of the advice. The Court must of course, see whether, in such cases there is any taint of mala fides or element or recklessness or ruse. If neither is present, legal advice honestly sought and actually given, must be treated as sufficient cause when an application under Sec.5 of the Limitation Act is being considered.” In the same decision it has also been held that if there is gross delay too patent even for layman or if there is incomprehensible indifference the shield of legal opinion may still be vulnerable. 26. In Rafiq v. Munshilal, A.I.R. 1980 S.C. 1400, the appeal filed by the appellant was disposed of in the absence of his counsel,so also his application for recall of order of dismissal was rejected by the High Court, the Supreme Court in appeal set aside both the orders of dismissal on ground that a party who, as per the present adversary legal system, had selected his advocate, briefed him and paid his fee could remain supremely confident that his lawyer would look after his interest and such an innocent party who had done everything in his power and expected of him, should not suffer for the inaction, deliberate omission or misdemeanour of his counsel. 27. B.K.N. Pillai v. R.Pillai, (2000)2 M.L.J. 20 (S.C.): A.I.R. 2000 S.C. 614, is a case where the suit was for injunction seeking eviction of defendant on the ground of his being a licencee. The defendant pleaded that he was not a licencee but a lessee. He sought for an amendment of written statement seeking incorporation of plea that in case he was not held a lessee, he was entitled to the benefit of Sec.60(b) of Easements Act, 1882. The defendant pleaded that he was not a licencee but a lessee. He sought for an amendment of written statement seeking incorporation of plea that in case he was not held a lessee, he was entitled to the benefit of Sec.60(b) of Easements Act, 1882. It was held by the Supreme Court that the application could not be rejected merely on the ground of prolonged delay in filing, especially when plaintiff could be compensated by costs. It further held that the proposed amendment would not amount to withdrawal of any admission made by the defendant and that such withdrawal was likely to cause irretrievable prejudice to the plaintiff. 28. The citations relied on by the learned senior counsel for the position that lawyer’s mistake in not making the partners of all the firms parties to the suit should not be allowed to prejudice the litigants, cannot be accepted on their face value. Each case will depend upon its facts. Non-im-pleading of the partners is a serious technical flaw and it will be the height of injustice if this is allowed to be rectified 22 years after the parties had entered the Court portals. In view it will also be an exercise in futility. 29. For all these reasons, we are satisfied that there are no merits in the appeal except with regard to ‘A’ Schedule items and ‘B’ Schedule item 1. The appeal will stand allowed as regards ‘A’ Schedule properties and ‘B’ Schedule item 1. There will be a preliminary decree for partition and separate possession of the plaintiff’s l/6th share in those items. In other respects the appeal will stand dismissed. However, there will be no order as to costs.