MANILAL GADIYA Vs. MANGILAL KESARINATH SEWAK

JUDGEMENT

(1.) THE plaintiff in O. S. No. 3782 of 1967 is the revision petitioner herein. He obtained a judgment against the defendants in the suit to the following effect: "defendants set ex parte. P. W. 1 examined. Exs. A-1 and A-2 marked, Claim proved. Preliminary decree is passed with costs as prayed for in (a) and (b) of the plaint. " In the decree drafted for the preliminary decree, the Court below has not stated the shares of the respective parties as provided in Form No. 21 of the C. P. C. Hence, the petitioner herein filed I. A. No. 5736 of 1974 to direct the office to amend the preliminary decree dated 20-10-1970 in O. S. No. 3782 of 1967 to be in accordance with form No. 21 of C. P. C. The respondents herein opposed this amendment stating that the decree is in accordance with the prayer made in the plaint and the plaintiff is trying to fill up the lacuna in the suit in the guise of a prayer for amendment of the preliminary decree and that the office is correct in drafting the preliminary decree as per the judgment of the Court. The respondents further contended that if the petitioner herein is aggrieved by the drafting of the preliminary decree he can get it rectified either by way of filing an appeal or a review petition. The Court below dismissed the application observing that though the plaintiff has stated in the body of the plaint that he is entitled to a half share in the profit and that he has contributed the entire principal amount, yet he omitted to pray for a declaration respecting his share and that since the plaintiff is not willing to amend his prayer the plaintiff has to be content with the preliminary decree as it is.

(2.) AGGRIEVED by the order of the Court below the plaintiff who was the petitioner in I. A. No. 5378 of 1974 has preferred the above revision petition.

(3.) MR. Himmatmal Mardia, learned counsel appearing for the petitioner brought to my notice Order 20, read the plaint, written statement and also the affidavit filed for the amendment of the decree. It is clear from the plaint that the parties viz. , the plaintiff and the second defendant are having equal share in the business. The prayer in the plaint is for dissolution of partnership, taking of accounts and appointment of Commissioner for the inventory of the account books, articles pledged and other assets of the partnership firm. Learned counsel also stated that since the defendant remained ex parte a judgment and decree was passed as prayed for.