Calcutta High Court (Appellete Side)
For The vs Ivan E. John & Ors. Reported In A.I.R. ... on 25 March, 2011
Author: Tarun Kumar Gupta
Bench: Tarun Kumar Gupta
1 Sl. March 25, C.O. 3457 of 2010
40. 2011.
Mr. Basudeb Gayen, ...for the petitioners.
Ms. Shampa Sarkar, ...for the opposite party no. 1.
Mr. Basudeb Gayen, learned advocate, appears for the petitioners and submits that service of notice of this revisional application on the proforma opposite parties no. 2 to 7 may be dispensed with, as the present petitioners have no interest adverse to them.
On the prayer of Mr. Gayen and at the risk of the petitioners, service of notice of this revisional application on the opposite parties no. 2 to 7 is dispensed with.
This revisional application is directed against Order No. 43 dated September 28, 2010 passed by the learned Civil Judge (Senior Division) at Siliguri, Darjeeling, in Title Suit No. 41 of 2007.
By the order impugned in this revisional application, the learned trial judge allowed an application for amendment of the plaint filed by the plaintiff/opposite party no. 1 on August 18, 2010 under Order VI, rule 17 read with Section 151 of the Code of Civil Procedure.
The present opposite party no. 1 being the plaintiff files Title Suit No. 41 of 2007 praying for declaration that the defendant no. 1 is a partnership firm and that the plaintiff and the defendants no. 2 to 7 are the partners of the said firm; for appointment of receiver; accounting and for other reliefs.
According to Mr. Gayen, the suit, as it was framed, was not maintainable under Section 69(1) of the Indian Partnership Act, 1932 as the said firm was not a registered one. Mr. Gayen submits that the plaintiff filed the said petition of amendment dated August 18, 2010 for inclusion of a prayer for dissolution of partnership firm along with some other amendments on factual aspects. According to him, as the suit was not maintainable, as it was framed, there is no scope of making it maintainable by allowing such application for 2 amendment of the plaint, though the plaintiff/opposite party no. 1 would have filed a fresh suit on selfsame cause of action as per law praying for dissolution of firm and other consequential reliefs.
In this connection, Mr. Gayen refers to the decisions in the case of Loonkaran Sethia vs. Ivan E. John & ors. reported in A.I.R. 1977 S.C. 336; in the case of Abani Kanta Pal reported in A.I.R. 1986 Cal. 143; in the case of Sooajmull Nagarmull vs. Dalhousie Properties Ltd. & ors. reported in (2006)2 C.L.T. 1; in the case of Noble Kuries vs. Sebastian Antony & ors. reported in A.I.R. 2010 Kerala 99; in the case of Jai Narayan Misra & ors. vs. Hashmathunnisa Begum & ors. reported in A.I.R. 2002 A.P. 389; in the case of T. Savariraj Pillai vs. M/s. R.S.S. Vastrad & Company reported in A.I.R. 1990 Madras 198; in the case of M/s. Shankar Housing Corporation vs. Smt. Mohan Devi & ors. reported in A.I.R. 1978 Delhi 255 and in the case of Ram Prasad-Thakur Prasad vs. Kamta Prasad- Sita Ram reported in A.I.R. 1935 All. 898.
In referring those decisions, Mr. Gayen tries to impress upon this court that even subsequent registration of the firm cannot give validity and legality of the suit already filed by the firm or by a partner in contravention of sub-sections (1) and (2) of Section 69 of the Indian Partnership Act, 1932.
According to Mr. Gayen, the learned trial judge committed a gross error of fact and law by allowing such application for amendment of the plaint and for that the impugned order is liable to be set aside.
Mrs. Shampa Sarkar, learned advocate appearing for the plaintiff/opposite party no. 1, on the other hand, submits that initially the suit was filed by the plaintiff presuming that the partnership firm was a registered one. She, further, submits that after knowing about non-registration of the firm, the prayer for dissolution of the firm was brought into record through amendment and that the said prayer is permissible under Section 69(3) of the Indian Partnership Act, 1932. In this connection, Mrs. Sarkar submits that though some factual aspects were also brought on record through such amendment, but those amendments will not change the very nature and character of the suit.
According to Mrs. Sarkar, so long the nature and character of the suit are not changed through amendment, the same should not be disallowed. In 3 this connection, she has referred to the decisions in the case of Usha Devi vs. Rijwan Ahmad & ors. reported in A.I.R. 2008 S.C. 1147; in the case of Shail (Smt.) vs. Manoj Kumar & ors. reported in (2004) 4 S.C.C. 785 and in the case of Jayanti Roy vs. Dass Estate Pvt. Ltd. reported in (2002) 5 S.C.C. 175.
I have carefully considered the submissions advanced by the learned advocates for both the sides, perused the application for amendment of the plaint and other materials on record.
During the hearing a copy of the original plaint and a copy of the amended plaint filed in the suit was tendered. It appears from the copy of the amended plaint that there was a prayer for appointment of receiver, accounting and other prayers, which go to show that the plaintiff had the intention of dissolution of the partnership firm. In this connection, the decision in the case of Mulakh Raj vs. Smt. Shashi Rani & anr. reported in A.I.R. 2005 Delhi 374 may be referred to. In that case the suit was filed by a partner against the other partners of an unregistered firm with a prayer for appointment of an arbitrator. The court was of the opinion that the said prayer amounted to a suit for dissolution of firm or for having shares from the assets of the firm and that the said suit was saved in view of the provisions of sub-section (3) of Section 69 of the Indian Partnership Act, 1932.
In the present case, also, there are specific prayer for appointment of commissioner for preparation of accounts, appointment of receiver for attachment of the assets of the partnership firm, etc. to show that the plaintiff/opposite party no. 1 really intended for dissolution of the partnership firm. Moreover, through the amendment, a specific prayer for dissolution of the firm was brought on record, which certainly do not change the nature and character of the suit.
I do not find any infirmity in the impugned order dated September 28, 2010 passed by the learned trial judge. The revisional application is, therefore, dismissed on contest.
However, I make no order as to costs.
Xerox certified copy of this order, if applied for, will be made available to the applicant within a week from the date of putting in the requisites.
4( Tarun Kumar Gupta, J. ) 5 dns