Deoki Nandan, J. - (1.) THIS is a Plaintiff's revision from an order dated the 25th July, 1977 of the Court of the Munsif, Ghazipur, refusing to allow them to amend the plaint. This revision was filed in this Court and entertained after the amendment of Section 115 by the Code of Civil Procedure (Amendment) Act, 1976 and before the substitution of that provision by U.P. Ordinance No. 15 of 1978 followed by U.P. Act No. XXXI of 1978.
(2.) THUS , apart from the question whether the learned Munsif could be said to have exercised a jurisdiction not vested in him by law, or to have failed to exercise a jurisdiction so vested or to have acted in the exercise of his jurisdiction illegally or with material irregularity the question is whether his order refusing to allow amendment of the plaint, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the Plaintiffs. These are the facts. The suit was filed in October, 1960. Relief claimed was for rendition of account, by the Defendants of the income, expenditure and profits of the business at Sarafa and brick kiln and to pass a decree for the recovery of the amount found due in favour of the Plaintiffs against the Defendants. The trial Court passed a preliminary decree for accounting by judgment dated the 31st Jan. 1965. On appeal the Addl. District Judge set aside the decree and remanded the suit for a fresh trial with the direction that the trial court should frame an issue on the question whether the parties were partners or not in the aforesaid business of Sarafa and brick kiln, which was also materially and substantially in issue in Suit No. 15 of 1954, and whether that question stands finally decided and is resjudicata between them. An additional issue was framed in November, 1976 raising the question whether the judgment in Suit No. 15 of 1954 operated as res -judicata with regard to the question of partnership between the parties in the present suit. I may here observe that Suit No. 15 of 1954 appears to have been finally disposed of by the judgment dated the 2nd March, 1971, by a Division Bench of this Court in First Appeal No. 187 of 1960.
(3.) IT is regretable, as it is, that the suit instituted in the year 1960 is still pending in the trial Court. While the suit was so pending after remand in the trial Court, the Plaintiffs applied for amendment of the plaint by adding the words "after dissolving the Plaintiffs' partnership" in the relief clause, the effect of which would have been to add the relief of dissolution of partnership between the Plaintiffs and the Defendants as a stepping stone of the Plaintiffs' claim for rendition of accounts by Defendants.;