- (1.) THIS is an appeal by the defendants arising out of a suit in the following circumstances. The suit was original by brought on 11-3-50 by Jai Jai Ram Manohar Lal, Ram Nagar , District Naini Tal, plaintiffs to recover a sum of Rs. 10,139/12/ from the defendants purporting to be the balance of sale price of timber purchased by the defendants from the plaintiffs on 10-3-47 and delivered to the defendants on 10-6-47.
(2.) ONE of the objections taken by the defendants in their written statement was that the plaintiff firm was not registered under the Indian Partnership Act, and as such, the suit was not maintainable; and that, at any rate, the suit was barred under the provisions of Order XXX, Civil P.C. After the lodging of the written statement, an amendment application was moved on behalf of the plaintiffs on 18-7-52 saying that the plaintiffs were joint family business, in which "Jai Jai Ram is the father and Manohar Lal is the son. The business name of the plaintiffs is Jai Jai Ram Manohar Lah". It was further stated that Manohar Lal has signed and verified the plaint as owner and proprietor and it was with Manohar Lal as owner and proprietor that the defendant too had been having dealings. There should thus be no difficulty as envisaged and objected to by the defendants, ............ with a view to avoid any future difficulty on this mere technicality, it is prayed that ............... in the heading of the suit ............ before the words Jai Jai Ram Manohar Lal, Ramnagar, (the words) "Manohar Lal Malik" may kindly be added, and that in para 1 of the plaint between the words Yeh ki muddai and Karobar Arhat lakri the words "Aznam Jai Jai Ram Manohar Lal" may kindly be added."
(3.) THE aforesaid amendment application was allowed by the trial court by its order D/-18-07-52, and the amendment was made in the plaint on that very date. It is note-worthy that the amendment application does not state that it was due to some bona fide mistake or omission that the suit had been, brought in the name of Jai Jai Ram Manohar Lal. On the other hand, the amendment application clearly stated that the amendment was being; sought only to avoid any future difficulty on this mere technicality raised by the defendants. The tone and contents of the amendment application show that it had been moved just to satisfy the whims of the defendants. The opening words of the application suggest that Jai Jai Ram as well as Manohar Lal, who were father and son, were both alive. On the other hand, the deposition of Manohar Lal recorded on 22-9-52 shows that his father Jai Jai Ram had died in the year 1938 or 1939 and that on the date of the institution of the suit, Manohar Lal and his four sons, one of whom was major, were the owners of the joint family business, stated Jai Jai Ram Manohar Lal.";