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2011 DIGILAW 175 (PNJ)

Ram Kishan Gupta v. Astuni Devi

2011-01-17

RAM CHAND GUPTA

body2011
JUDGMENT Mr. Ram Chand Gupta, J.:- The present revision petition has been filed under Article 227 of the Constitution of India for quashing of order dated 29.8.2009 passed by learned trial Court dismissing the application for amendment of plaint filed by petitioner-plaintiff under Order VI Rule 17 of the Code of Civil Procedure (hereinafter to be referred as the ‘Code’). 2. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned trial Court. 3. Brief facts relevant for the decision of present revision petition are that the present suit has been filed for rendition of account and for mandatory injunction by petitioner-plaintiff against respondent-defendants. It is submitted that defendant no.1 was the sole proprietor of M/s.A.Chalia Oil Company and the said firm was sole agent of defendant no.2, who is dealing in petroleum products including kerosene oil. On 21.12.1999, plaintiff entered into a partnership with defendant no.1 and a partnership deed was also written, and the same was executed and registered in the office of Sub Registrar, Faridabad. Defendant No.1 had invested Rs.1,00,000/-in the shape of moveable property and the plaintiff had invested Rs.25,000/- in the said firm. Plaintiff and defendant no.1 both opened a current account in the name of the firm in Punjab National Bank, Old Faridabad, on 27.12.1999. Hence, capital of plaintiff remained in the firm to the tune of Rs.25,000/-. 4. Plea taken by defendant no.2 is that M/s. A.Chalia Oil Company, Faridabad, is its dealer and the same was commissioned in 1979 with Smt.Astuni Devi as sole proprietor and the said agreement was signed on 20.2.1975. It is also stated that there is no such partnership in their notice, as alleged by plaintiff. 5. Issues were framed in this case and the case was fixed for evidence of plaintiff. Application filed by plaintiff for ad interim injunction under Order 39 Rules 1 and 2 of the Code was dismissed. Appeal filed against the said order was also dismissed and the revision petition filed before this Court was also withdrawn. 6. Case was fixed for evidence of the plaintiff for 16.4.2007 and however, no witness was examined by the plaintiff and rather an application for amendment of plaint was filed. Petitioner-plaintiff by way of amendment wants to implead M/s.A.Chalia Oil Company as a party through its partner Smt.Astuni Devi. 6. Case was fixed for evidence of the plaintiff for 16.4.2007 and however, no witness was examined by the plaintiff and rather an application for amendment of plaint was filed. Petitioner-plaintiff by way of amendment wants to implead M/s.A.Chalia Oil Company as a party through its partner Smt.Astuni Devi. Plea is also sought to be taken that application filed by plaintiff to permit him to become a partner in the firm, i.e., M/s.A.Chalia Oil Company has not been decided by defendant no.2. Hence, defendant no.2 and the said act is result of collusion among all the defendants. It is also sought to be amended that addition of Satish, defendant no.3 as a partner in the firm is illegal and the same is to be declared so. It is also sought to be pleaded that one Lal Singh had earlier been the partner to Smt.Astuni Devi and he left the partnership in the year 1993 and however, defendant No.2 had wrongly shown him as continuing to be partner in the firm with mala fide intention. 7. Application was opposed by the defendants. The application was dismissed by learned trial Court by observing as under:- “8. In the present case the amendment application has been filed after the commencement of trial and the case was proceeding at the stage of evidence of the plaintiff. In the present case prima facie it is very much clear that the trial is proceeding at the stage of evidence of the plaintiff since 16.4.07 and despite availing several opportunities the plaintiff has failed to examine even a single witness till today. Now in the considered opinion of this Court, the only question is to be decided by the Court is whether due diligence can be inferred on the part of the applicant/plaintiff for amendment of plaint or not? It has been argued by ld. counsel for the defendant that present application shall not be allowed as the trial has already commenced and above said changes will change the nature of the suit and respondent will suffer an irreparable injury which cannot be compensated in terms of money. 9. A perusal of the file reveals that the facts pleaded by the plaintiff are within the knowledge of the plaintiff and the same can be pleaded at very early stage but plaintiff has not come to amend the same at the very early stage. 9. A perusal of the file reveals that the facts pleaded by the plaintiff are within the knowledge of the plaintiff and the same can be pleaded at very early stage but plaintiff has not come to amend the same at the very early stage. The other facts pleaded by the plaintiff will not only change the nature of the suit but the defendant will suffer irreparable injury which cannot be compensated in terms of money. The plaintiff has filed the suit against the defendant namely Astuni Devi and others as pleaded that defendant no.1 is the partner in the firm namely A.Chalia Oil Company which is also recognised under the dealership of defendant no.2. Hence, this fact that A. Chalia Oil Company is necessary party in the present case despite knowledge, plaintiff has not pleaded that A Chalia Company as a party since very inception in the present case. However, other facts pleaded by the plaintiff in the present application, i.e., 2B to 2E if allowed, the same will clearly change the nature from rendition of accounts to declaration. And this Court is also of the view that facts which the plaintiff wants to amend will not help the court in deciding the real dispute in controversy. 10. After hearing the parties this Court is of the view that no due diligence can be inferred on the part of the defendant/applicant. The Hon’ble Supreme Court of India in the recent ruling titled as Vidyabai and others v. Padmalatha and anothers [2009(1) LAW HERALD (SC) 540] : 2009(1) RCR 763, has held that the court has no jurisdiction to allow amendment of pleadings after commencement of trial. Trial would be deemed to commence when after the framing of issues the witness filed an affidavit in lieu of examination-in-chief. The case is at the stage of evidence of the plaintiff and the purpose seems to be only to delay the proceedings and this Court is also of the view that if the present amendment is allowed, the opposite party will suffer an irreparable loss and injury which cannot be compensated in terms of money. The case is at the stage of evidence of the plaintiff and the purpose seems to be only to delay the proceedings and this Court is also of the view that if the present amendment is allowed, the opposite party will suffer an irreparable loss and injury which cannot be compensated in terms of money. Hence, keeping in view the facts and circumstances, mentioned above, I found no merits in the application and the application under Order 6 Rule 17 C.P.C. filed on behalf of plaintiff for amendment of plaint stands dismissed.” It has been contended by learned counsel for the petitionerplaintiff that the present suit was filed prior to amendment of Order VI Rule 17 of the Code and hence, it is contended that judgment rendered in Vidyabai and others v. Padmalatha and anothers [2009(1) LAW HERALD (SC) 540] : 2009(1) RCR 763 is not applicable to the present case and that learned trial Court has wrongly relied upon the said judgment. 8. Be that as it may, this Court is to see as to whether any material irregularity or illegality has been committed by learned trial Court in dismissing the application filed by the petitioner-plaintiff for amendment of plaint. 9. In recent judgment delivered by Hon’ble Apex Court in Revajeetu Builders & Developers v. Narayanaswamy and sons and others [2009(6) LAW HERALD (SC) 3662] : 2010 (1) RCR (Civil) 27, factors to be taken into consideration while dealing with application for amendment have been given. The relevant paragraphs read as under:- “67. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment. (1)Whether the amendment sought is imperative for proper and effective adjudication of the case? (2)Whether the application for amendment is bona fide or mala fide ? (3)The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4)Refusing amendment would in fact lead to injustice or lead to multiple litigation; (5)Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? And (6)As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. 68. And (6)As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. 68. These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive. 69. The decision on an application made under Order VI Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. 70. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments.” This Court is to see as to whether applying these parameters to the present case, any illegality has been committed by learned trial Court in dismissing the application filed by the petitioner-plaintiff. 10. The present suit is pending since the year 2002. The present application was filed after availing so many opportunities for leading evidence. The case was fixed for evidence of the plaintiff for 16.4.2007 and thereafter many opportunities were availed by the petitioner-plaintiff to adduce evidence. Now the plaintiff by amending the plaint intends to take new pleas. It has been rightly observed by learned trial Court that if amendments are allowed, the same would change the nature of the case from rendition of accounts to that of declaration and that amendment would not help the court in deciding the real controversy in dispute. 11. Law is well settled in Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby. 12. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby. 12. Hence, in view of these facts and by applying the aforementioned parameters as laid down by Hon’ble Apex Court in Revajeetu Builders & Developers’s case (supra), to the present case, I am of the view that no illegality or material irregularity has been committed by learned trial Court in dismissing the application in passing the impugned order and no grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Hence, the present revision petition is hereby dismissed being devoid of any merit. ------------0.S.L.0------------