Decided on July 21,1950

Kundha Singh Respondents


Chopra, J. - (1.) THIS is a petn. to revise an order of Addl. Sub -Judge, 2nd Class of Faridkot dated 25 -11 -2006 accepting resp's. prayer to amend his plaint in a suit for accounts. The suit was originally brought on 27 -3 -2003 with the allegations that the pltf. through an agreement dated 25 -12 -2003, entered into partnership with the petnr. to sell liguor in village Khemuana during the year 2003, that the profit & loss was to be shared equally by them, & that he had till 26 -2 -2003 advanced Rs. 4438 -3 -0 towards the partnership business & had received only Rs. 600 out of it. The deft, was claimed to be the accounting party because he was actually carrying on the selling part of it & keeping its accounts. The pltf. prayed for dissolution of the partnership & a decree for the amount that may be found due to him after settling the accounts. The deft, admitted the factum of partnership but asserted that it was only to last till Namani 2003. The liability to render accounts was denied on the ground that the pltf. was himself carrying on the whole business & was utilizing its profits. Queerly enough, the trial Ct. without striking a preliminary issue regarding the liability of the deft to render accounts & the pltf's right to sue for the same started trying the case on the following issues: 1. Whether the partnership was to continue till Namani, 2003 or till the end of the year 2003 according to the document in question? O.P.
(2.) TO how much amount the pltf. is entitled from the deft? O.P. Relief. The case lingered on till 3 -9 -2006, when the deft, took objection to the maintainability of the suit on the basis of the agreement which was alleged to be void & unenforceable, because the contract to sell liquor in the village had been sanctioned by the State in the name of a third person as prayed for by the deft, a fresh issue to the following effect was framed on 7 -9 2006: Whether the agreement, the basis of the suit was void due to its object being forbidden by law? O.D. 2. Realising the force of the objection, the pltf. presented an appln. on 16 -9 -8006 seeking permission to amend his plaint. The proposed amended plaint was also put in with the appln. It was to change the suit to one for realisation of Rs. 3838 -3 -0 which was said to be the amount due to the pltf. after deducting his receipts of Rs. 600 out of the total advance of Rs. 4438 -3 -0 made to the deft, in the said business. The pltf. agreed to forgo his share in profits to which he was entitled on the basis of the agreement. The trial Sub -Judge accepted the appln. & allowed the plaint to be amended. 3. Mr. Daya Sarup has vehemently contended that the amendment should not have been allowed because its effect was to change the nature of the suit & to deprive the deft, of a valuable light accrued to him by lapse of time. Objection is also taken on the ground that the amendment was prayed for at a very late stage of the case which had already become ripe for arguments. Several authorities have been cited in support of the argument that, as a general rule the Cts. should not allow an amendment converting a suit of one character into a suit of Anr. character. The general principle of law enunciated in these cases can hardly be disputed & it cannot be denied that the amendment in the present case must be refused if it amounts to a change in the character of the suit or substitution of one distinct cause of action to Anr. . The facts of the cases cited are clearly distinguishable. In all of them the amendment was refused because the nature of the suit or the cause of action was found to be totally changed by the amendment. Stress has particularly been laid on a Division Bench judgment of the Lahore H.C. in Ram Kishen v. Alopi Pershad, A.I.R. 1934 Lah. 38 :, 148 I.C. 253 which was a suit for dissolution of partnership & rendition of accounts. The trial Ct. dismissed the suit holding that the pltf. had failed to prove that there was a partnership between him & the defts. & in appeal to the H.C. it was prayed that the pltf. be allowed to convert the suit to one for remuneration as an agent or servant of the defts. The prayer was refused because the amendment would necessarily alter the whole nature & frame of the suit & also because it was made for the first time in appeal in the present case the pltf. still relies upon the facts & cause of action given in the original plaint. The sun was for dissolution of partnership, the term in which as alleged by either of the parties admittedly expired during the pendency of the cast, & for realisation of the amount that may be found due after settling the accounts. The only alteration that has been made in the amended plaint is that the amount claimed has beet assessed; & fort going his share in the profits the pltf. wants a decree for the amount that ht considers to be due to him from the deft. The latter can even now very well plead, as he pleaded before, that the pltf. is not entitled to the amount sued for the counsel has not been able to convince me that the effect of the amendment would be to change the nature of the suit or to substitute a new cause of action.
(3.) IT is next contended that the amendment was prayed for at a very late stage of the suit & if allowed it would deprive the deft of the valuable right accrued to him by lapse of time. As already observed, the amendment was necessitated by an objection taken by the debt. No objection regarding the invalidity or unenforceability of the agreement was taken in the written statement. The pltf. lost no time to pray for the amendment when it was so objected & a new issue on the point was raised. An amendment can be allowed at any stage of the proceedings & the law does not fix any particular time before which the prayer should be made. It can, no doubt, be refused in a particular once if the Ct. finds that the pltf. has acted negligently by sleeping over his rights or that notwithstanding an objection by the opposite party he insisted on proceeding with the suit as originally framed. No such negligence or laches can be attributed to the pltf. & the appln. cannot be said to have been made at a stage when it ought to have been refused. I do not also agree with Mr. Daya Sarup that the amendment would work injustice to the petnr. The well known rule that no amendment should be allowed, which has the effect of taking away an existing right from the deft, generally applies to cases where the pltf. seeks to take un a new cause of action & sometimes also to cases where a new relief on the same cause of action is added. If in such a case a suit on the new cause of action or for the new relief has already become time barred the amendment would, no doubt result in depriving the deft, of a valuable right. Even that rule is not an inflexible one, & there can be exceptional cases in which the special circumstances of a particular case may outweigh the considerations underlying this rule. But in the present case, I am of the view that this rule has no appln. because the pltf. does not seek to shift to any new cause of action or add a fresh relief on the same cause of action. As already observed the prayer for the money was already there & the cause of action was the supply of liquor by the pltf. & refusal of the deft, to account for it. It is significant that an issue calling upon the pltf. to prove the amount due to him had already been framed. In support of his claim, the pltf. had originally relied also upon an agreement but it was not the sole cause of action & the liability of the deft, did not solely depend upon it. It has been generally recognised that where in respect of an original liability to pay a certain sum of money a document, such as a promissory note or a mtge. is taken & the pltf. in a suit on such a document finds that the document is inadmissible in evidence owing to some defect, an amendment of the plaint by claiming relief as on the basis of the original liability, does not amount to a substitution of a distinct cause of action, & should, therefore, be allowed. In Hakam Ali v. Hashu, A.I.R. 1938 Lah. 241 :, 181 I.C. 624, a suit by the deft, was brought on a contract of sale of land, which was discovered to be void owing to invalid sanction under some special local law. The purchaser sought to amend his plaint in order to obtain the return of the purchase money, it was held that the amendment should be permitted & the pltf. should not be referred to a separate suit. Here also the agreement was objected to as being void & the pltf. realising the force of the objection wants to fall back on the original liability of the deft, to pay for the liquor supplied to him. For all these reasons, I do not find anything wrong in the order of the trial Judge.;

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