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2008 DIGILAW 377 (JK)

S. Arvinder Singh v. Rajinder Singh

2008-10-13

SUNIL HALI

body2008
1. Through this revision petition, petitioners seek setting aside of order dated 28.12.2007 passed by the learned City judge, Jammu whereby the court below has allowed the application for amendment filed by respondents 1 and 2. 2. The facts of the case are that the plaintiffs filed a civil suit seeking declaration to the effect that they be declared entitled to be formally appointed as dealers/licencees of the respondents i.e. M/s Bharat Petroleum Corporation for operating the Petrol Pump under the name and style as Kashmir Automobile Store situated at Opposite Manda Quarter, Jammu; with consequential relief of mandatory injunction directing the M/s Bharat Petroleum Corporation and its functionaries for recognizing/appointing respondents 1 and 2 as dealers/licencees for operating the retail outlet of the petrol pump. 3. The case set out by the plaintiffs is that they and father of petitioner entered into partnership in the firm titled as Kashmir Automobile Stores. It is averred that this firm has joint bank account, which was operated by the plaintiffs and father of the petitioner. It is alleged that father of the petitioner had managed to get the licence of the petrol pump transferred in his name without dissolving the firm. It is further contended by the petitioner that he is also entitled to operate bank accounts and affairs of the Company. 4. In the written statement, defendants have stated that the plaintiffs have no right to interfere in the business of running petrol pump. The licence has been given to their father and not to the firm. It is also emerged from the stand of the contesting defendant that the firm is operating separate bank account and other accounts have already been closed. 5. On this disclosure by the contesting defendant in the written statement, application came to be filed by the plaintiffs/respondents for amendment of the plaint seeking relief of mandamus directing the contesting defendant by mandatory injunction to allow the plaintiffs to participate in the affairs of the Kashmir Automobile Stores and to operate bank account and to generally participate in the business of the firm as partners. 6. The contesting defendant/petitioner resisted the application for amendment on the ground that it cannot be permitted as the plaintiffs have waived of their right to raise this plea under Order-II Rule 2 CPC. 6. The contesting defendant/petitioner resisted the application for amendment on the ground that it cannot be permitted as the plaintiffs have waived of their right to raise this plea under Order-II Rule 2 CPC. It is alleged that this plea was available to the plaintiffs at the time of filing of the suit. He has not chosen to file the same, as such, cannot claim any relief at this stage. It is also stated that this relief is not available to the plaintiffs as licence has been granted in the name of the father of the petitioner and not in the name of the firm. 7. After hearing the parties, learned trial court allowed the application for amendment and permitted the plaintiffs to amend the suit. The findings of the trial court were essentially based on the fact that cause of action accrued to the plaintiffs only during the course of the pendency of the suit and they have no knowledge about the facts enumerated by the defendants in their written statement. It is further stated that the relief claimed by the plaintiffs for seeking amendment will not change the nature of the suit. 8. I have heard learned counsel for the parties and perused the record. The principles governing amendment are well settled. Order 6 Rule 17 CPC deals with the amendment of pleadings and provides that the court may at any stage of proceedings allow either party to alter or amend the pleadings in such a manner on such terms as may be just and necessary for the purpose of determining the real questions in controversy between the parties. The purpose of amendment is to ensure that the controversy raised in dispute is finally concluded and courts are required to exercise the power liberally with the intention to enhance the interest of justice. It is only in case where serious injustice or irreparable loss is likely to be caused; the courts should adopt liberal approach to allow the amendment in the pleading to avoid multiplicity of litigation. In the present case, it is not in dispute that the suit of the plaintiffs in essence relates to its participation in running the business in the name of Kashmir Automobile Stores. He claims that the licence has been given to the firm which was in operation at the time of issuance of licence. In the present case, it is not in dispute that the suit of the plaintiffs in essence relates to its participation in running the business in the name of Kashmir Automobile Stores. He claims that the licence has been given to the firm which was in operation at the time of issuance of licence. He was running the business as partner and was also operating the bank accounts. All that the plaintiffs seek in this amended petition was that the decree of mandamus be issued directing the defendants to allow him to operate the bank accounts and participate in the affairs of the firm namely, Kashmir Automobile Stores. By incorporating this plea in the suit, in my opinion, neither changes the nature of suit nor does it constitute a different cause of action. Only in case where different cause of action is set out or nature of suit is changed, the amendment is barred. This court at this stage is not going to decide the merits of the controversy involved in the suit. The present amendment is not based on new cause of action nor does it change the nature of controversy. I, therefore, concur with the findings of the trial court. 9. In view of the above, this revision petition is dismissed along with connected CMP. Let the parties appear before the court below on 25.10.2008. Caveat No.05/2008. Heard. Discharged.