- (1.) The present appeal is directed against the order dated 9-11-1981 passed by Vlth Additional District Judge, Gorakhpur in Civil Appeal No. 171 of 1981 arising from the Original Suit No. 165 of 1976.
(2.) The plaintiff-respondent filed suit for specific performance of contract No. GP/ Cont/GCS/75-E/95 dated 6-5-1975 for the direction to the appellant to purchase the good specified in annexure No. 1 to the affidavit during the period from 6-5-1975 to 3- 5-1976 and for rendition of accounts. The suit was filed on the ground that the plaintiff-respondent was registered partnership firm and was carrying on business of general merchandise goods. The defendant-appellant was operating a canteen and hospital issued a tender for the purchase of certain items for which the quotation was given by the plaintiff-respondent which was approved. The plaintiff-respondent had also made supply for the goods in respect of which the payment was made but subsequently, the orders were not placed by the defendant-appellant and the goods were not purchased and therefore, the suit was filed. The defendant-appellant filed the written statement, in which it has been stated that the period of supply has expired, therefore, no direction could be issued for specific performance of contract and the plaintiff-respondent could only file a suit for damages. Thereafter, amendment application (paper No. 43/A2) dated 30-3-1977, annexure No. 1 to the affidavit was filed for amendment in the plaint with the relief that the relief No. 1 be deleted and the relief No. B numbered as 1 and relief Nos. C and D numbered as Nos. 3 and 4 and the relief No. B to be added as "in case plaintiff is not found entitled to the relief No. 1 the plaintiff be awarded Rs. 10.000/- or any other sum against the defendant by way of damages on account of breach of contract by the defendant." The objection was raised by the defendant-appellant and after hearing both the parties; amendment application (paper No. 43/A2) was rejected on 5-4-1977. Thereafter, the revision was preferred against the said order to the Court of District Judge, Gorakhpur which was rejected by order dated 28-4-1977 summarily as according to District Judge revision does not satisfy the requirements of the proviso added to Section 115, C. P. C. by the amending Act of 1996. Learned District Judge has not considered the merit of the case. No further revision was preferred against the order of the District Judge. The defendant-respondent further moved the amendment application (paper No. 97/A2) almost after two year on 28-4-1979. The copy of the application is annexure No. 3 to the affidavit. The said application has been rejected vide order dated 23-8-1999 on the ground that the amendment application (paper No. 97/A2) dated 28-4-1979 is almost identical to the amendment application (paper No. 43/A2), which was already rejected and the order of rejection had become final. Thereafter, vide order dated 30-5-1981, the suit was dismissed. The plaintiff-respondent filed the appeal against the judgment and decree dated 30-5-1981. The appeal has allowed vide order dated 9-11-1981 and the judgment and decree passed by the learned Munsif was set aside and the case was remanded back to the trial Court with the direction to allow the plaintiff-respondent to incorporate the amendment proposed through amendment application (paper No. 97/A2) and thereafter, file additional written statement. The appellate Court has allowed the amendment application (paper No. 97/A2). Aggrieved by it, the present appeal has been filed. The appeal was admitted and the plaintiff-respondent was directed to file counter affidavit but no counter affidavit has been filed. On 14-8-2003 case the listed for hearing. List revised but no one appears on behalf of respondent. Learned counsel for the appellant was present and heard.
(3.) The contention of the learned counsel for the appellant is that learned District Judge has committed an error in allowing the amendment application and the appeal. The amendment application (paper No. 97/ A2) has already been rejected and against which no revision was filed. It is further submitted that identical amendment application (paper No. 43/A2) was moved in the year 1977, which was rejected and against the said order, the revision was also rejected by the learned District Judge. Therefore, second amendment application (paper No. 97/A2), which was on the identical ground and proposing the identical amendment has been rightly rejected by the learned Munsif vide order dated 23-8-1979, against which no revision has been filed. The order of the Vlth Additional District Judge, Gorakhpur is illegal and liable to be set aside.;