- (1.) THIS amendment application has been moved on behalf of the plaintiff appellant under order VI. Rule 17 C.P.C. seeking to amend the plaint. A counter-affidavit has been filed on behalf of the defendants respondents and in reply a rejoinder affidavit has been filed on behalf of the plaintiff appellant. The necessity to move the amendment application arose in this manner. The plaintiff filed a suit claiming that he entered into a partnership with one Satya Narain and on 30th January, 1961, the partnership was dissolved and accounting took place wherein a sum of Rupees 3638.31 was found to be due to the plaintiff from the said Satya Narain. The said amount was, however, not paid by Satya Narain to the plaintiff and, therefore, he was compelled to file the suit against the two defendants, the defendant No. 1 being the widow and the defendant No. 2 being the son of the said Satya Narain. Satya Narain died some time in February/March 1963 before the institution of the suit which was instituted on 30th of October, 1963.
(2.) THE defendants were obviously impleaded as the heirs and legal representatives of the deceased Satya Narain. The defendants contested the suit and denied the factum of partnership. They also denied that any accounting or dissolution took place on 30th January 1961. Various other pleas such as limitation, Section 69 of the Partnership Act were taken. The trial court decreed the suit in favour of the plaintiff and then an appeal was taken out to the lower appellate Court which allowed the same and dismissed the suit. The lower appellate court, however, affirmed the findings of the trial court on the question of the factum of Partnership and on certain other issues such as the shares of the plaintiff and the deceased Satya Narain to the extent of half and half and that Satya Narain was the accounting party. The lower appellate court dismissed the suit on its finding that no dissolution and accounting had taken place on 30th January 1961. The plaintiff has now come up in the instant appeal and an application for amendment has been moved on his behalf whereby, a new para to be numbered as 7-A is sought to be added to the plaint. Similarly a fresh relief to be numbered as A-1 is sought to be added to the reliefs claimed. In a nutshell, the aim of these amendments is to set up an altenative case to the effect that in case in the opinion of the court no dissolution of the partnership is established and again if in its opinion no final accounting is held to have taken place, then the partnership be dissolved and the defendants be directed to render accounts and to pay the amounts to the plaintiff which may be found due to him on such accounting. Shri K.N. Tripathi, learned counsel for the defendant- respondents, has opposed this application on the ground that a valuable right has accrued to, his clients on the basis of limitation. He states that the plaintiff knew when he instituted the suit that Satya Narain was already dead and the partnership stood dissolved on the death of Satya Narain. The limitation for claiming account is three years from the date of the dissolution of the partnership. Now Article 5 of the new Indian Limitation Act is the relevant Article and the corresponding Article in the old Limitation Act was Article 106.
(3.) IN this view of the matter, he contends that the application for amendment should not be allowed. On the other hand, Shri R.N. Bhalla, learned counsel for the appellant, contends that the court's power to allow amendment is wide and even if the court has to allow an amendment in respect of a time-barred claim, then the court has power to do so, and in the circumstances of the case, this power should be exercised in favour of amendment The law relating to amendment has been exhaustively laid down in A.K. Gupta and Sons v. Damodar Valley Corpn. (AIR 1967 SC 96) and there can be no doubt that the court has a wide discretion in the matter. Ordinarily, the court will not allow an amendment which takes away a right which has accrued in favour of a party on the basis of limitation but as the Supreme Court itself laid down there may be circumstances in which an amendment may be allowed even though it may be in relation to a time-barred claim.;