Punjab-Haryana High Court
Tej Pal Jain Son Of Late Sunder Lal Jain ... vs Mohinder Pal Jain Son Of Late Sunder Lal ... on 9 April, 2013
Author: K. Kannan
Bench: K. Kannan
C.R. No.3696 of 2011 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT
CHANDIGARH
C.R. No.3696 of 2011
Date of Decision.09.04.2013
2. C.R. No.3697 of 2011
Tej Pal Jain son of late Sunder Lal Jain son of Umrao Mal resident of
590/A, MES, Officers Quarter, Chief Engineer, Officer Mess, Air Force,
Camp Hanuman, Ahmedabad
.....Petitioner
Versus
Mohinder Pal Jain son of late Sunder Lal Jain and others
.......Respondents
Present: Mr. Achin Gupta, Advocate
for the petitioner.
Mr. Mukand Gupta, Advocate
for respondent Nos.1, 2 and 7.
None for other respondents.
CORAM:HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the
judgment ? No
2. To be referred to the Reporters or not ? No
3. Whether the judgment should be reported in the Digest? No
-.-
K. KANNAN J.(ORAL)
1. The revision petitions are at the instance of the plaintiff, who challenges two independent orders. One was an application to amend the written statement filed by the defendant, which was allowed and on the application being allowed, the plaintiff moved an application under Order 1 Rule 10 to implead the persons, who were claimed in the amended statement as necessary parties. The objection was taken by the defendant that the application for impleadment was barred by limitation and the Court dismissed it.
2. It could be noticed that the application for impleadment C.R. No.3696 of 2011 -2- under Order 1 Rule 10 became essential in view of the defence taken by means of amendment in the written statement that some of the erstwhile partners were required to be impleaded and the suit was bad in non-joinder of necessary parties. The suit had been instituted on 13.07.2002 and application for amendment of the written statement was filed in 2011 at the fag end of the trial. The Court while accepting the application allowed for the defendant to contend that the suit was bad for non-joinder of necessary parties i.e. "erstwhile partners namely Sanjay Jain son of late Shri Bodh Raj Jain, Shri Sudhir Jain and Rajnish Jain son of Shri Mohinder Pal Jain, Sanjiv Jain and Sunil Jain sons of Shri Raj Kumar Jain and legally no such suit for rendition of accounts of dissolved partnership and without the association of all the ex-partners of the concerned firm."
3. If the amendment was, therefore, allowing for the plea for non-joinder of necessary parties, the plaintiff had moved an application for impleadment of those persons, who were claimed to be the necessary parties by means of the amendment. This application was dismissed. On a contest made by the defendant that the impleadment would be barred by limitation, before the arguments got underway, I requested the counsel appearing on behalf of the respondent to elect his plea regarding the non-joinder of necessary parties or giving up his right to seek for amendment so that the impleadment does not become necessary. Learned counsel would argue that there is no need for such an election, for the written statement filed already was to the effect that the suit was not maintainable and the amendment was in the nature of explaining how the suit was not maintainable. Learned C.R. No.3696 of 2011 -3- counsel's contention regarding maintainability of the suit in the manner drawn will have to be understood from the context of how the suit has come about.
4. The suit was for rendition of account sought at the instance of the plaintiffs against the defendants, who were the brothers. It appears that the father of the plaintiffs and contesting defendants was one Sunder Lal Jain, who was having a partnership firm from which he had retired in the year 1996 and he had subsequently died on 15.03.2000. The suit for rendition of account is made on the basis that the defendants were answerable for the receipts in the business. The suit is not one for dissolution of partnership. A dissolution would require the presence of all persons but a mere rendition of account would require an examination of whether the contesting defendants were accountable at all or not accountable and whether a suit for accounts could lie without a prayer for dissolution. It shall also be possible to contend that the partnership itself does not exist and it is dissolved by operation of law. In such an eventuality, the question of impleadment of all partners does not arise. I am stating this issue only to examine whether there was any merit in the contention that the absence of other ex-partners of the firm which his father was running along with his sons in the array of parties would affect the maintainability of the suit. The written statement in its original form contends in paragraph 7 as follows:-
"That the suit of the plaintiff is not maintainable in the present form in view of the general happenings and subsequent changes after family settlement dated 02.06.1981."C.R. No.3696 of 2011 -4-
5. This hardly affords the scope for inference that the defendant was pleading that the suit ought to fail for want of necessary parties. A plea regarding the joinder of parties must be taken at or before the settlement of issues and it cannot be taken after nearly 9 years after the institution of the suit. If the defendant had failed to take up such a plea but he would think such a plea would require to be stated explicitly, it was not really a matter of extension of his contention that the suit was not maintainable but it was a new plea. If the defect in the suit which the defendant as pleading for must be substantiated, it ought to be on a sheer legal basis. A bald contention that the suit is not maintainable cannot allow the Court to examine the maintainability of the suit unless both parties have clearly understood the issue of maintainability in a particular manner and the evidence led by parties allows for the Court to allow for such an inference. I am not, here deciding the issue of maintainability because the issue had been framed in Court. I leave it to the Court below to decide this issue with reference to the evidence let in by the parties and I will not make any observation therefor. However, I will observe that an amendment, which was brought with reference to the non-joinder was clearly an afterthought and it ought not to have been permitted.
6. It is in this context that the election that I proposed to the defendant assumes significance. If the defendant were to contend that some of the persons, who were ex-partners were required to be impleaded and the non-impleadment ought to fail by reason of the non- joinder of necessary parties, on such an application being moved the defendant was bound to accept the same and allow for the impleadment C.R. No.3696 of 2011 -5- to have come about. The defendant was estopped from contending that certain parties were necessary but would have objection to the impleadment when such an impleadment was sought. If the defendant was taking up a plea which was to clearly prejudice the plaintiff as regards the limitation, even a plea for amendment in the written statement ought not to have been allowed. While the Courts will always be liberal in granting amendment to the written statement than an amendment to the plaint, the judgments are that even such an amendment to the written statement will be impermissible if a serious prejudice could be caused to other side on the issue of limitation. That precisely is the contention which is now sought to be contended by the defendant. Having found that a particular contention regarding non- joinder was not made previously and when he was seeking for amendment, such an amendment could not have been allowed if it had a serious ramification on the issue of limitation itself. The amendment ordered was clearly erroneous and an impleadment which was truly in the nature of consequence to an amendment was also therefore unnecessary.
7. Learned counsel for the respondent seeks to rely on certain judgments about permissibility of impleadment petitions which would be barred by limitation. I do not think it is essential to refer to any of them since I am rooting my judgment on first principles of law as I have enunciated in the judgment above and particularly in the light of attempt to amend the written statement which itself was belated nd would have caused prejudice to the plaintiff.
8. The order allowing for amendment by the Court below is set C.R. No.3696 of 2011 -6- aside and the civil revision against the said order in C.R. No.3697 of 2011 is allowed. In view of the said order, the petition for impleadment becomes unnecessary and the dismissal of the petition would not require to be modified although by different reasons. The revision in C.R. No.3696 of 2011 is dismissed.
(K. KANNAN) JUDGE April 09, 2013 Pankaj*