LODHA, J. - (1.) THIS is a revision application by the plaintiff (in Civil Original Suit No. 136 of 1969 pending in the Court of Additional Civil Judge, Jodhpur) from the order dated 2-3-1971 by which the learned Judge disallowed the plaintiff's prayer to amend the plaint so as to plead in the alternative that the defendant No. 3 was acting as an agent of defendants Nos. 1 and 2, M/s. Premchand T. Nathani and Premchand respectively.
(2.) THE suit was originally filed against all the three defendants on the ground that the defendants Nos. 2 and 3 were partners and were dealing in sanitary-ware and pipe fitting in the name and style M/s. Premchand T. Nathani. THE defendants denied partnership between the defendants Nos. 2 and 3 thereupon the plantiff filed an application for amendment of the plaint. The learned Additional Civil Judge has held that the entire case would be chandged by allowing the proposed amendment. A preliminary objection has been raised on behalf of the nonpetitioners that no revision is maintainable from an order passed under O. VI, r. 17 Civil P. C. on an application for amendment of pleadings. Reliance has been placed on the observations of Bose J. in the order of reference reproduced in Narayan Sonaji vs. Sheshrao Vithoba (FB) (1), and it has been urged that these observation has been approved by their Lordships of the Supreme Court in Keshardeo vs. Radha Kishen (2) and Harakchand vs. The State of Rajasthan (3 ). Bose, J. has observed : ". . . . . . . if that Court entertains the application and considers it in accordance with the prescribed forms of law, that is to say, after hearing the parties and so forth, and reaches a conclusion judicially, that is to say, after formally setting out reasons in writing, I find it impossible to say either that that Court has not exercised a jurisdiclion vested in it by law or that it has refused to exercise such a jurisdiction. . . . . . . . . The Judge must reach his conclusion judicially and not arbitrarily, and so forth. Therefore, if a Judge refused to here the parties or one of them, or if he flips a coin instead of applying his mind to the cases and giving a judicial decision, or if he acts arbitrarily such as deciding on the colour of a man's eyes or that of his hair, or if he gives no reasons in cases where the law requires reasons to be recorded, then he is not complying with the procedure which the law prescribes for a fair and proper trial. In that event interference i-called for under cl. (e ). But if he does all that and acts fairly and judicially the matter cannot, in my judgment, fall within clause (c ). " Now let us turn to the wordings of O. VI, r. 17 Civil P. C. "the court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. " It may be pointed out that in the present case the application for amendment has been made before the parties have led evidence. In the original plaint it has been no doubt alleged that defendants Nos. 2 and 3 are partners in the business being carried in the name of M/s. Premchand T. Nathani. Bnt in para No. 3 of the plaint it has been further specified that both the said defendants purchased articles of sanitary-ware and pipe fitting from the plaintiff from time to time in the name : M/s. Premchand T. Nathani and that the defendant No. 3 acknowledged the correctness of the accounts on behalf of all the defendants every year and signed the same. When the defendants denied the factum of partnership between them altogether, the plaintiff wanted to amend the plaint so as to plead in the alternative that in case the alleged partnership was not established the defendants Nos. 1 and 2 must be held bound by the acts of defendant No. 3 as he was acting,as an agent on behalf of all the defendants and was making purchases, signing the bills and making acknowledgements on their behalf. In my opinion the cause of action of the suit is not at all changed by the proposed amendment, nor has the trial court held so. In fact it has been pleaded in the original plaint also in para No. 3 as stated above that defendant No. 3 used to sign the accounts on behalf of all the defendants. Thus the fact that defendant No. 3 was acting on behalf of the defendants is there in the original plaint also and all that is sought to be introduced by the amendment is to make the pleadings more specific and to state the inference which may be drawn from the acts of defendant No. 3. It is, therefore, not a case where the defendants have been taken by surprise. In my opinion the observation of the trial court that by the proposed amendment the entire case is changed is wholly arbitrary and in disregard of the original pleading. The trial court has not addressed itself to 1 the requirements of O. 6, r. 17 Civil P. G. which enjoins upon the court to allow all such amendments as may be necessary for the purpose of determining the real questions in controversy between the parties. Here, it may not be out of place to point out that even under the Partnership Act a partner is deemed to be the agent of the firm for the purpose of the firm. The nature of the suit is, therefore, not altered by the proposed amendment nor does it cause any prejudice or surprise to the opposite party. On the other hand it is necessary for the purpose of determining the real questions of controversy between the parties. In disallowing the plaintiff's prayer the court below has ignored the well established principles to be kept in mind in the matter of allowing amendments and its finding cannot be said to be a judicial one. In this view of the matter, a case for interference has been made out under sec. 115 (c) of the Code of Civil Procedure. Accordingly, I allow this revision application and modify the order of the trial court dated 23-1971 and direct that besides the other amendments allowed by the trial court the plaintiff be also allowed to amend the the para No. 2 of the plaint as prayed in his application dated 19-1-1971. Since the court below has already awarded Rs. 50/- as costs to the defendants for allowing certain other amendments prayed for in the same application, I do not consider it proper to allow any further costs to the defendant, for allowing this amendment. The costs of this revision application will be easy. Let the record of the case be sent forthwith to the trial court for proceeding according to law. .;