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2005 DIGILAW 268 (MP)

Ramvilas Gupta v. Govind Prasad Gupta

2005-02-21

RAJENDRA MENON

body2005
JUDGMENT Heard. Challenging the order Annexure P-1 dated 5.1.2002 rejecting an application for amendment filed by the petitioners-plaintiff under Order 6 Rule 17 of CPC petitioner has filed this petition. Shri Sanjeev Jain learned counsel for the petitioner has argued that the petitioners had filed the suit in question for declaring a sale deed executed by respondents No.1 and 2 on 7.1.1991 as null and void. During the pendency of the suit, defendants had filed certain applications for amendment and by amending the written statement they have pleaded that the property admittedly belongs to a firm and as firm is not registered suit is not maintainable. When the aforesaid application was allowed, petitioner made an application for amendment his plaint, interalia contending as alternate that the agreement executed is null and void and petitioners be declared to be owner of one-third share of the property. This application has been rejected on the ground that it changes nature of the suit and has been filed belatedly after 12 years, after the evidence of the plaintiff and their cross-examination is over. Shri Jain argued that the petitioners only wanted to clarify his plea in the light of the amendment made by the defendants and this application has been rejected without any reasons. It is submitted by him that as the amendment was necessary for effective disposal of the dispute between the parties, learned Court should have allowed the same. Respondents have contended that proposed amendment changes nature of the suit and has rightly been rejected as the amendment after commencement of the trial is not permissible. From the records it is seen that petitioners have come up with a case that they alongwith defendants No.1 and 2 are partners of a firm namely M/s. Govind Metal Industries. It is further indicated in the plaint that petitioner came to Gwalior on 20.10.1991, when it has come' to his knowledge that defendant No.1 and 2 who are also partners in the firm have entered into an agreement dated 7.1.1991 for selling property of the firm with the other defendants and therefore petitioners filed the suit for declaring the sale deed as null and void. Further averments made in the plaint are that the defendants No.1 and 2 have sold property of the firm to defendants No.3 and 4 and they are not permitting the petitioner to enter the factory premises. Further averments made in the plaint are that the defendants No.1 and 2 have sold property of the firm to defendants No.3 and 4 and they are not permitting the petitioner to enter the factory premises. By filing written statement respondents have raised an objection with regard to non-registration of the firm and right to file the suit without registration. Petitioner by the amendment wants a declaration that he is entitled to one-third share of the property in question and sale to the extent of his share in the property is illegal. Learned Court in the impugned order has held that by amendment an earlier suit filed with regard to property of the firm is being converted into a inter-se dispute between the partners claiming their own share in the property, holding that this changes nature of the suit, which is not in connection with the inter se dispute between the parties so also on the ground that challenge made after 12 years is not permissible and after taking note of the fact that evidence of the plaintiff and cross examination are over, application has been rejected. Rejection of the application for amendment on the grounds as indicated by the learned Court in the order cannot be termed so erroneous or illegal to such an extent that interference at this stage is called for in a proceeding under Article 227 of the Constitution of India. Admittedly, petitioner has filed a suit in his individual capacity claiming declaration to the effect that the sale deed is null and void, now petitioner wants one-third share in the partnership firm's property in question. From the records and written statement filed by respondent No.4, it is seen that income tax return and other documents are not filed in the name of the firm and if the amendment is allowed it changes nature of the suit and accordingly Learned Court has rejected the application for amendment. In the result, I find no ground to interfere, writ petition is dismissed.