D.N. Patel, J. - (1.) THE present writ petition has been preferred by the original Plaintiff in Money Suit No. 10 of 1997 against an order passed by learned Sub Judge -IV, Hazaribagh dated 7th February, 2009, whereby, the trial court has dismissed the application of amendment in the plaint preferred by the present Petitioner (original Plaintiff).
(2.) HAVING heard learned Counsel for both the sides and looking to the facts and circumstances of the case, I hereby quash and set aside the order passed by learned Sub Judge -IV, Hazaribagh dated 7 February, 2009 in Money Suit No. 10 of 1997 for the following facts and reasons: (i) The Petitioner is an original Plaintiff, who has instituted Money Suit No. 10 of 1997. (ii) It appears that the written statement was filed by the Respondents (original Defendants), wherein, in paragraph 15 it has been stated that the original Defendant No. 1 is not a partnership firm, but, it is a sole proprietorship firm. Considering these statements in the written statement filed on behalf of the Defendants, an amendment application in the plaint was moved by the original Plaintiff. The said application was preferred on 10th July, 2005. Proposed amendment sought for by the original Plaintiff reads as under: Proposed Amendment 1. That in the description of Defendant in the cause title page of the plaint, after the name of Defendant No. 1 as "M/s Janardhan Prasad Agrawal" and before the word 'firm carried out' the word "A partnership" be deleted and in its place the following words be inserted - "proprietorship" and in the same manner the word "in co - partnership" be deleted and further in the third line "and Sri Chandra Sekhar Prasad" be deleted 2. That in the same page, the name and address of Defendant No. 3 from the cause title page of the plaint is deleted. That in para 2 of the plaint, in the second line the word "partnership" be deleted and in its place' proprietorship' be inserted. In the same line, the words "in co -partnership by" be deleted and in its place 'by its proprietor' be inserted. In the third line of para 2 of the plaint the word "and 3" be deleted.
(3.) THAT in the 5,6,7 and 8 line of para 2 of the plaint the following sentence be deleted after full stop (.) "The Defendants No. 2 and 3 are Partners of the Defendant No. 1 firm residing at the address mentioned in the file above. Thus, the aforesaid amendment was sought for by the original Plaintiff on the basis of the written statement filed by the Defendants. (iii) The trial court has lost sight of the fact that the aforesaid amendment ought to have been allowed. Otherwise, if the suit is allowed and decree is to be executed, it will create lot of difficulties for the execution of the decree. (iv) Learned Counsel appearing for Respondent No. 2 vehemently opposed this writ petition and submitted that no error has been committed by the trial court in dismissing the amendment application preferred by the original Plaintiff. Learned Counsel for Respondent No. 2 further submitted that original Defendant No. 1 is not a sole proprietorship firm, but, it is a partnership firm. This contention is not accepted by this Court mainly for the reason that looking to paragraph 15 of the written statement filed by original Defendants, it appears that correctly the amendment application in the plaint has been moved by the original Plaintiff. (v) Even the evidences of the Plaintiff has not started. Looking to the stage of the trial, the amendment application ought to have been allowed by the trial court. (vi) Looking to the nature of the amendment, it cannot be said that by allowing the amendment application the nature of the suit will be changed. 3. As a cumulative effect of the aforesaid facts and reasons, I hereby quash and set aside the order passed by learned Sub Judge -IV, Hazaribagh dated 7 February, 2009 in Money Suit No. 10 of 1997. Amendment application dated 10 July, 2005 preferred by the original Plaintiff, which is at Annexure -1 to the memo of the present petition is, hereby, allowed. Looking to the time consumed after filing of the Money Suit, I hereby direct the trial court to expedite the hearing of Money Suit No. 10 of 1997 so that it can be disposed of on or before 30 December, 2011. 4. The writ petition is allowed and disposed of.;