- (1.) This revision-petition is directed against an order, dated 30th August, 1968, of the learned Subordinate Judge, First Class, Jagadhari, by which he dismissed the plaintiff's application for amendment of the plaint. It arises out of the following facts.
(2.) The plaintiff-firm, Messrs The Punjab Rajasthan Timber Trading Company, Yamunanagar, instituted a suit for the recovery of Rs. 29,209.88 (including Rs. 18,046.98 as principal and Rs. 11,162.90 as interest), alleging that the plaintiff-firm has been supplying timber and packing cases for the period 25th November, 1960 to 21st November, 1963, to the defendant (The Wearwell Co. (India) Ltd., New Delhi) with effect from 25th November, 1960. There was thus a single continuous transaction. A current account was opened and whatever supplies were made by the plaintiff were debited to the account of the defendant and whatever payments were made by the defendants were credited to the same account. A sum of Rs. 18,046.98 fell due from the defendant, which amount is claimed with interest at the rate of 12 per cent per annum. It was further pleaded that the defendant had made part-payments by cheque on 27th May, 1963 and 16th December, 1963 in the said account. The suit, therefore, instituted on 25th May, 1966 was within limitation, counted from the date of the aforesaid part-payment. The plaint was signed by Balmukand, one of the partners of the plaintiff firm. The parties closed their evidence. During the course of final arguments, the defence counsel raised an objection that the original firm, which was carrying on the business of timber and packing cases under this very name, had come into existence on 27th June, 1960 and was dissolved on 31st March, 1963, and the plaintiff-firm, which came into being on 1st April, 1963, bearing the same firm name, was a different firm and it could not claim the amount, if any, due to the dissolved firm. Thereupon, the plaintiff made an application on 2nd August, 1968, seeking permission to amend the plaint and to add this plea :- "That the plaintiff-firm was initially constituted on 27th June, 1960 and consisted of five partners, namely, Balmukand, Muni Lal, Jiwan Ram, Kanta Devi and Pritam Kumar. It started and carried on its dealing with the defendants as hereinafter mentioned. Subsequently, Jiwan Ram, one of the partners, retired on 31st March, 1963, and the firm was dissolved and all the business, assets and liabilities of the said firm were taken over by the remaining four partners who constituted themselves into a partnership with effect from 1st April, 1963, and continued their dealings with the defendants, keeping intact their rights and liabilities as they existed before the dissolution of the previous partnership on 31st March, 1963.... The plaintiffs were thus entitled to recover from the defendants all the dues arising out of the transactions of purchases which the defendants made with the firm as it existed from 1960 till 31st March, 1963 as also with the firm as it was constituted on 1st April, 1963."
(3.) A preliminary objection has been raised by Shri D.D. Sharma, learned counsel for the defendant-respondent, that this revision is not competent because even a wrong exercise of its discretion under order 6, Rule 17, Civil Procedure Code, or an erroneous construction of those provisions by the Subordinate Court, which undoubtedly had the inherent jurisdiction to try the case, would not amount to "the exercise of its jurisdiction illegally or with material irregularity" within the meaning of Section 115, Civil Procedure Code. In support of this contention, reliance has been placed on Ratilal Balabhai Nazar v. Ranchhodbhai Shankarbhai Patel and another, 1966 AIR(SC) 439 and L'Union Fire Accident and General Insurance Co. Ltd. v. Shri O.P. Kapur and others, 1963 AIR(P&H) 397.;